| N.Y. Sup. Ct. | Jan 15, 1904
1 — The words complained of are not a slander per se. To be a slander per se they would have (1) to charge the plaintiff with a criminal offence, or, failing of that, (2) be spoken of him in respect of his business, and be of such a character that they must necessarily injure him in his business; as that (being a tailor) he was a botch, or that his clothes were misfits, or that he was insolvent, and the like (Odgers, Bigelow’s ed. ch. 2, part 2). It is obvious that the words do not come under the first head; nor do they come under the second. They do not touch him in his skill or credit as a tailor. Moreover, there is no allegation in the complaint that the words were spoken of him in the way of his business; and that is essential (Odgers, Bigelow’s ed. P. 64).
K general libel or slander is one tiling; a libel or slander against one only in his trade, business or profession is another. Words which constitute a general libel or slander may be such as to injure one in his business as well as in
2 — The words here complained of not being slanderous per se, are not actionable at all, unless they did special damage; and the special damage has to be alleged in the complaint in order to make it state a cause of action. In the case of words libelous or slanderous per se, the law presumes that they do general damage to reputation, or to business, or to both, as their purport or gravity may be; but in the case of words not libelous or slanderous per se, the law does not presume that they do any damage, and therefore in order to make them actionable the complaint has to allege special damage caused by them. The damage which a libel or slander per se will be presumed to do to one’s business, by causing a general loss of credit or falling off therein, is not special damage, but general damage, and may be proved under a general allegation of damage (Odgers, Bigelow’s ed. ch. 10, p. 293 ; Smid v. Bernard, 31 Misc. 35" court="N.Y. Sup. Ct." date_filed="1900-03-15" href="https://app.midpage.ai/document/smid-v-bernard-5406295?utm_source=webapp" opinion_id="5406295">31 Misc. Rep. 35). Dicta are to be found classifying a general falling off of business caused by a libel or slander per se as special damage; but they are inadvertent. Special damage, whether from a libel or slander per se, or from words not of that class, is always and only damage which the law does not presume will follow from the words complained of, and which for that reason has to be specially and particularly pleaded in order to be recovered for. And general damage can never be recovered for words not libelous or slanderous per se, but only special damage. The gist of the action in such a case is special damage. If the words are such that the law will permit a presumption of general damage to reputation or to business therefrom, then they are libelous or 'slanderous
The apparent classification as special damage in the opinion in Bergmann v. Jones (94 N.Y. 51" court="NY" date_filed="1883-11-20" href="https://app.midpage.ai/document/bergmann-v--jones-3609545?utm_source=webapp" opinion_id="3609545">94 N. Y. 51) of that general damage to business (i. e. general decrease or falling off) which' the law will presume in the case of a libel or slander per se, was plainly inadvertent. The loss of a particular customer is special damage, and cannot be proved unless specially pleaded; but a general falling off or decrease in business comes under the head of general damage. The law presumes general damage, but does not presume special damage. Hence, the latter has to be specially pleaded and proved.
The allegation in this complaint which is claimed to be of special damage is that a named person was about to enter into an agreement of partnership with the plaintiff to carry on the tailoring business, “ which arrangement would have been greatly to the advantage and benefit of the plaintiff, and large profits would have resulted to him therefrom ”, but by the words complained of he was influenced not to do so.
The prospective profits alleged are wholly speculative. They would depend on the skill and energy of the partners; and the plaintiff may do better alone with his skill and energy. Ho special damage being alleged, the complaint does not state a cause of action.
3 — Ho branch of the law is so beset by a mass of erroneous and confusing dicta as that of libel and slander in civil actions ; and these dicta are persistently kept rife by some text writers, and, as must be owned, by some judges, instead of being ignored. One of them (and it is so modern that it does not seem to have foimd its way into any text book yet, and, it is to be hoped, never will) is repeated, and given a status, if that were possible, by the opinion in our Court of Appeals in a very recent case (Crane v. Bennett, 177 N.Y. 106" court="NY" date_filed="1904-01-05" href="https://app.midpage.ai/document/crane-v--bennett-3579034?utm_source=webapp" opinion_id="3579034">177 N. Y. 106). The action was for damages for an unprivileged libel per se, and the question of what evidence of malice would permit the jury to give smart money damage being up, the learned Judge writing says, after referring to cases:
“ The general rule is that in an action for libel, proof by*418 the plaintiff tending to establish the falsity of the alleged libelous publication is evidence of malice, and if such evidence is introduced a question for the jury is presented whether the malice is of such a character as to call for punitive damages.”
This is repeated several times by the learned Judge, and declared to have been the law for a quarter of a century, viz., since the Samuels case, which he cites. ¡Nevertheless, scientific lawyers have always understood, and still understand, that an unprivileged libel per se is in a civil action presumed by the law to be false, instead of the plaintiff being under the necessity of proving it false; and the law has never been otherwise for an instant. Moreover, unless the defendant pleads its truth as a defence, its falsity stands conceded, and cannot be questioned on the trial; and if there be such a defence pleaded, the burden is not on the plaintiff to prove the falsity of the libel, but on the defendant to prove its truth.
As is said in Folkard’s Starkie (if, indeed, it be seemly to cite authority to our learned profession for a thing so well known among us) : “ The law always presumes in favor of innocence, and therefore does not require the plaintiff to prove the falsity of the alleged calumny; on the contrary, it imposes the burden of proving the affirmative on the defendant; the truth of the supposed slander is, in effect, a ground of justification which must be substantiated by the defendant” (Sec. 9, 4th Eng. ed.). And Odgers says (p. 169) : “The falsehood of all defamatory words is presumed in the plaintiff’s favor, and he need give no evidence to show they are false; but the defendant can rebut this presumption by giving evidence in support of his plea that the words are true in-substance and in fact.”
It would be strange enough for counsel for plaintiff to take the affirmative of such an issue when it is raised by tho answer; but what would be said of a counsel for plaintiff who should proceed to prove the falsity of the libel when no issue-of its truth is raised by the answer at all, but, on the contrary, its falsity stands unquestioned? His conduct would be the-jest of every educated lawyer present He would be tender
And if the defendant should give evidence of the truth under a defence of the truth, and the plaintiff should meet such evidence by contrary evidence, the court could not even then legally charge the jury that if the plaintiff had proved the defamatory words false, that was evidence of malice. That would imply to the jury that it was for the plaintiff to prove the words false; whereas the charge would have to be that unless the defendant had proved the words true, they were to be taken as false, in which case the words might be of such a character as to be of themselves evidence to the jury of malice.
Of course the statement that it is for the plaintiff to prove the falsity of the libel in a civil action (which the law already presumes in his favor), is a mere borrowed inadvertence of the learned Judge writing, and not a decision of the court; and the learned Judge says in the same opinion (and it is always a happy circumstance that the antidote accompanies the bane) that it is not everything said by a judge in Ms opinion which becomes law, but only that which the court actually decides upon the facts of the case; that “ a judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance”; and that “what may have been said in an opinion should be confined to and limited by
There is a very great difference between charging a jury that the defamatory words in themselves, or “the falsity' of the libel ”, if some will have it that way, may be sufficient evidence of malice to support smart money, and charging that “ proof by the plaintiff tending to establish the falsity of the alleged libelous publication,” may be sufficient evidence of malice to support smart money; for the latter is pregnant with the error that it is for the plaintiff to prove the words false, and is misleading to the jury.
This dictum of the plaintiff having to prove the falsity of the libel in a civil action in order to prove malice as a foundation for smart money (and that is the only reason for proving or claiming malice at all in the case of a libel or slander not of a qualiiiedly privileged occasion), seems to exist nowhere except in this State. It seems to have first arisen in the Samuels case (9 Hun, 288) in'some loose sentences of a dissenting opinion which was adopted on appeal by the Court of Appeals (75 N.Y. 604" court="NY" date_filed="1878-12-10" href="https://app.midpage.ai/document/samuels-v--evening-mail-association-3621837?utm_source=webapp" opinion_id="3621837">75 N. Y. 604), since which time it has been inadvertently copied several times. The learned Judge who wrote it there may have had his thumb on the page of some good text writer; but if he had looked again he would have seen that it was of a chapter which did not relate to ordinary actions for libel or slander, like the one before him, at all, but only to actions for qualifiedly privileged libels and slanders. In such cases the presumption of falsity does not exist; there is no presumption either way. The
The justification for this digression is that trial judges have been confronted by counsel with this obviously fallacious dictum, for a long time in the trial of causes, and they feel that they ought to be rid of it. The learned trial judge who tried the Crane case kept clear of it, as trial judges generally do; and the important thing is that his charge was affirmed, and that is the full extent of the actual decision of the Court of Appeals. If the learned trial judge had charged that it was incumbent on the plaintiff to prove that the libel was false in order to prove malice and thereby get smart money, and the verdict had been for only nominal damages, who will say that the judgment would not have had to be reversed? And yet this is what trial judges would do if they were to accept as law the dictum, repeated in the Crane ease.
This matter of smart money is common to all actions for torts against the person, and not peculiar to libel and slander (Taylor v. Church, 8 N. Y. 460) ; and" until the advent of the dicta of some quite modern judicial opinions in this State in libel and slander actions, there never was any trouble about it. It was formerly just as plain and simple a matter in actions for libel or slander per se as it was and still is in actions of battery, crim. con., false imprisonment and malicious prosecution (Tillotson v. Cheetham, 3 Johns. R. 64).
The motion for a new trial is denied.