158 N.Y.S. 70 | N.Y. Sup. Ct. | 1916
Instead of the concise statement of facts required by traditional rules of pleading, the phrasing of the several defenses follows so closely the literary style of the “ investigator ” who wrote the
First Defense: Denies that plaintiff’s reputation was good; denies publication of the words alleged (save as part of the entire article) and the innuendoes attached thereto; alleges that in view of the true nature of Wine of Cardui and the character of the advertisements promoting the sale thereof by the medicine company (the maker and vendor), the published article was in substance true and the words concerning plaintiff contained therein were justified.
Second Defense: Repeats the allegations of paragraph II of the answer and alleges further that because of matters disclosed in detail defendants believed the statements contained in the article were true, and that the reflections upon plaintiff were fair comments “ on the facts hereinbefore set forth ”; also that the occasion was privileged. Although a separate defense may in itself be bad, if it contains denials of material allegations of the complaint, according to the practice in this department, the defense is good against demurrer so long as the denials remain, even though they be improperly included in the defense. Black v. Gibbs, Greenbaum, J., N. Y. L. J., Oct. 6, 1915'. Although the defense of justification is ordinarily one of confession and avoidance, from the papers herein it appears that on a motion made by plaintiff to strike out, the court, as to both the first and second defenses, held that defendants were entitled to deny publication of excerpts from an article, and “ to justify a charge as inter
In the case of one who manufactures, as distinguished from one who sells (See Hehmeyer v. Harper’s Weekly Corp’n, N. Y. L. J., Dec. 21, 1915), there may be a presumption of knowledge of ingredients, but it would be going altogether too far to say that it is necnessarily to be presumed that the manufacturer of a patent medicine, not necessarily poisonous, knows that his composition is harmful and, if he sells it, that his sales are fraudulent, and made with intent to deceive.
There is no express allegation of knowledge or intent in this answer, and no fact is alleged from which either knowledge or intent must necessarily be implied. So far from this being the case the first defense expressly admits that “ in special cases and under special circumstances ” Wine of Cardui has therapeutic value. The plea is deficient for a further reason. As a whole the article in question is an attack upon the advertised and actual merits of Wine of Cardui and upon plaintiff as one actually and morally responsible for the injurious effects resulting from the sale of the substance and, as well, the nefarious methods by which sales are effected. In fact plaintiff is not alleged to have manufactured or sold Wine of Cardui. The allegation is that plaintiff was “ chief owner ” of the medicine company, the “ maker ” and “ manufacturer ” of Wine of Cardui. Every act alleged with respect to the manufacturing, advertising and sale of Wine of Cardui, if directly alleged at all, is alleged to have been the act of the company. Whether the “ company ” was a partnership or a corporation does not
In effect the charge is that Wine of Cardui is a “ cheat ” because of its “ working inevitably to the hurt of the victim ” who uses it, and, inasmuch as plaintiff manufactures and sells the substance, plaintiff is a swindler, etc. The plea, however, alleges not that the use of Wine of Cardui works “ inevitably ” to the detriment of the user, but that “it is without therapeutic value save * * * in special cases and under special circumstances, ’ ’ and if used by all women under all circumstances it is “ harmful and poisonous to the system. ” Clearly this does not meet the charge.
I think the defense of privilege and fair comment is also bad. The occasion was neither privileged nor qualifiedly so. It is the right of every man to state facts, and as well to fairly comment on the wares of
For similar reasons, and particularly where the facts are uncontradicted, it may be a question of law whether particular words are in any sense comment, fair or unfair. If A complains that B published him as a murderer, would it be a defense for B to answer that A advertised pure milk for sick babies, but in fact sold impure milk, wherefore B denounced him as a murderer. The sense in which the word “ murderer ”
There is a further objection to the defense in question. Based on the allegations of paragraph II of the answer, which contains an immaterial denial of plaintiff’s good repute and of the innuendoes of the complaint, and upon an allegation that the article complained of “ is true in substance and in fact,” followed
The plaintiff also attacks the several defenses on grounds other than those I have discussed, some of which are of obvious seriousness, but as the objections referred to are now known to defendants, and as there must be an amendment, opportunity will then be afforded to avoid these objections, should such a course be deemed wise, and a discussion of them now is unnecessary.
The defenses contained in the answers of defendant McClure’s are in substance the same as those of Harper’s and Hapgood, and must fail for the reasons I have given.
Demurrer sustained, with costs of trial.