103 N.Y.S. 496 | N.Y. App. Div. | 1907
This action was brought to recover damages for an alleged libelous publication, which is set out in -the complaint. The innuendo
Defendant demurred to the complaint, upon the ground that the facts stated did not constitute a cause of action. The demurrer was sustained, the complaint dismissed, and plaintiff appeals.
The demurrer, of course, admits the truth of the allegations alleged, and also admits every inference that can be fairly and legitimately drawn from the words used in such allegations. 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 those to whom they are addressed. (18 Am. & Eng. Ency. of Law [2d ed.], 974.) Applying this rule to the words used in the complaint, I do not see how any meaning can be ascribed to them other than that the plaintiff was charged with being drunk on the occasion referred to. The words are: “ A man who gave his name as Samuel F. B. Morse * * * and whose office is at present at Ho. 49 Exchange Place, staggered into the Church Street police station last night and clinging for support to the desk at which sat Sergeant McAuley, gasped, Ive been poisoned with strychnine. Send for a doctor quick. My name is Samuel F. B. Morse,’ saying which the man fell to the floor with a crash. The sergeant sent a hurry call to the Hudson Street Hospital which brought Dr. Vance and an ambulance within a few minutes. The surgeon thought' he saw symptoms of strychnine poisoning and applied a stomach pump. The use of the instrument disclosed evidences of alcohol. * * * Dr. Vance would not take the patient to the hospital. After a rest the man left the station house. * * * Mrs. Morse was seen last night at the address given by the supposed victim of poison. She scoffed at the idea that he had taken poison, but said with much feeling, 11 am not surprised that he said so. For the past three weeks he has been celebrating the patenting of a notable invention.’ ”
The learned justice sitting at Special Term thought the article was not libelous because it simply charged the plaintiff with cele
The article as published does not charge the plaintiff with “celebrating,” but does charge .him with “ staggering ” into the police. Station, clinging to the sergeant’s desk' for support, and then fall ing to the floor with a crash. It is true it also contains what purports to be a statement by Mrs. Morse to the effect that the plaintiff had been." celebrating,” but this is not the charge made against the plaintiff. Her statement, however, when taken in connection with the charge made, would naturally convey the idea that the plaintiff, at the time, was drunk and for sometime had been indulging to excess in intoxicating .liquors. In my opinion the publication complained of is actionable per se, because it not only imputes to the plaintiff drunkenness, which tends to degrade and render him odious (Holmes v. Jones, 147 N. Y. 59; 18 Am. & Eng. Ency. of Law [2d ed.], 867; Morgan v. Kennedy, 62 Minn. 348), but it also charges him with being drunk in a public place, which is made a crime, punishable by fine or imprisonment or both. (Liquor Tax Law [Laws of 1896, chap. 112], § 40, as amd. by Laws of 1897, chap. 312.) ■ ■ '
The judgment appealed from, therefore, must'be reversed, with costs, and the demurrer overruled, with costs, with leave to ,the " defendant to withdraw its demurrer and answer on payment of the costs in this court and in the court below.;
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred. , .'
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed. .
