105 N.Y.S. 609 | N.Y. App. Div. | 1907
It is a familiar every day rule of pleading in actions for slander or" libel, that if the words complained of are equivocal, i. e., capable of an innocent meaning and a libelous meaning, the former has to be adopted by the court at the trial, and the case has to be dismissed ; unless the complaint has a special allegation that the libelous meaning was the one meant and conveyed by the defendant, in which case the question of the meaning is one of fact and not of law. Under such a special allegation the plaintiff may introduce any evidence to show that the defamatory sense was meant and understood. That is this case, for a defamatory meaning is alleged in the complaint. Except for that allegation, the word friend would have to be taken in its innocent sense. As it is, however, the plaintiff may prove, for instance, that the defendant had previously told Dr. Stubbert that the plaintiff had had a paramour friend, or had been addicted to such friends; and that would be evidence on which the jury could.find that the “ friend” mentioned, and put in suspicious quotation marks in liis letter, and made more suspicious by its society with the word “ fellow,” was meant for the same, or the same kind of a friend, and that that was the meaning conveyed. Words which could not bear a defamatory meaning to people generally, may bear such a meaning to one tutored in that use of them (Odgers, p. 113). ' All this scarcely calls for the citation of authority (Taylor v. Wallace, 31 Misc. Rep. 393).
It may not be amiss to note that as this is an action of libel the words may be actionable without' imputing nnchastity, as would have to be the sense of them to make them actionable if only spoken..
The judgment should be reversed.
Hirschberg, P. J., Woodward and Jenks, JJ., concurred.
If the words had been, “ There is a fellow who used to be a paramour” or “a lover of the woman,” it would have been libelous; but an accepted-secondary meaning of “friend” is “lover of either sex,” and one province of quotation marks is to invite attention to other than the usual meaning of words. ■ It is for the jury to determine the sense in which "words have been used by the defendant, where they are capable of a construction which would
Interlocutory judgment reversed,’with costs, and demurrer overruled, with costs, With leave to the defendant to plead over oh. payment.. ' .
