Larsen v. Brooklyn Daily Eagle
150 N.Y.S. 464
N.Y. App. Div.
1914
Check Treatment
Burr, J.:

If the article complained of is not defamatory of itself, damage is not implied in law. (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437, 443.) “ Where the libel or slander is of a manufactured article and does not directly impeach the integrity, knowledge, skill, diligence or credit of the plaintiff, the words are not actionable at law unless special damage be alleged and proved, and a ‘ general allegation of loss of customers is not sufficient to enable the plaintiff to show a particular injury. ’ ” (Marlin Fire Arms Co. v. Shields, 171 N. Y. 384.) A demurrer admits the truth of the allegations of the complaint, and also admits every inference that can be fairly and legitimately drawn from the words used therein. The general rule of construction is that words are to be taken in the sense which is most obvious and natural, and according to the idea that they are calculated to convey to *6those to whom they are addressed. (Morse v. Star Co., 118 App. Div. 256; Rossiter v. New York Press Co., Limited, 141 id. 339.)

So construed the article complained of fairly imports that ice cream was sold at a store on the comer of Franklin and St. Marks avenues in the borough of Brooklyn; that a child eating some of the ice cream so manufactured and sold, within a few hours thereafter, was seized with convulsions and died; that it was believed that the ice cream was directly responsible for the child’s death; that four other children had been taken ill, one of them seriously, after eating ice cream at the same place, and that the said ice cream was manufactured by plaintiffs. We think that these words are libelous per se. “ Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, * * * or which have a tendency to injure him in' his office, profession, calling or trade. And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse •and society.” (Newell Sland. & Lib. [2d ed.] 43.) Ordinarily, a number of persons would not be made ill, and in one instance such illness be followed by death, after consuming an article of food, and directly in consequence thereof, unless such food contained injurious ingredients. While such ingredients may enter into the composition in a single instance without involving evil conduct on the part of the manufacturer, where it is repeatedly done but one inference may be drawn, and that is, that the consequence is the result of deceit and malpractice on his part. So construed, this article is more than a libel upon the thing manufactured; it is a reflection upon the honesty and integrity of the manufacturer. In Kennedy v. Press Publishing Co. (41 Hun, 422), relied on by respondent in this case, the court say: “A libel on a thing may constitute a libel on a person. Thus to say of a brewer that he adulterates his beer, would be a libel upon him in his trade, not because of the allegation that the beer was bad, but because the language would import deceit and malpractice on the part of the brewer.” If this is true at common law, much more is it *7the case when the statutory provisions respecting the sale of impure or adulterated food are considered. (Agricultural Law [Consol. Laws, chap. 1; Laws of 1909, chap. 9], §§ 200, 201.) By this act, “No person or persons, firm, association or corporation shall within this State, manufacture, produce, sell, offer or expose for sale any article of food which is adulterated or misbranded within the meaning of this article.” Ice cream is included within its definition of food. “In the case of food an article shall be deemed to be adulterated: * * * If it contains * * * any ingredient which may render such article injurious to the health of the person consuming it.” If the article complained of had simply charged the commodities with being worthless, but not unwholesome, it would not have been actionable per se. In the case at bar the charge is much broader than that. We think that the order appealed from should be reversed, with ten dollars costs and disbursements; that the demurrer interposed by defendant should be overruled, with costs, with leave to the defendant, within ten days after service of a copy of the order to be entered herein, to withdraw said demurrer and answer the complaint upon payment of costs.

Thomas and Stapleton, JJ., concurred; Jenks, P. J., and Rich, J., dissented on the authority of Kennedy v. Press Publishing Co. (41 Hun, 422); Marlin Fire Arms Co. v. Shields (171 N. Y. 384), and Dooling v. Budget Publishing Co. (144 Mass. 258).

Order reversed, with ten dollars costs and disbursements, demurrer interposed by defendant overruled, with costs, with leave to defendant, within ten days after service of a copy of the order to be entered herein, to withdraw said demurrer and answer the complaint on payment of costs.