52 N.Y.S. 638 | N.Y. App. Div. | 1898
The plaintiff was a butter maker in a creamery at Clarence Center N. Y. He had resigned his position and was intending to move to Corry, Penn., and had packed his household goods and effects and had"billed them to Corry. The defendant was the president of this creamery. The plaintiff was indebted to the creamery when he
“ Look out fob Him.
“ Editor Leader.— Having great love for Corry and her people,. I wish to take this opportunity of notifying them of a condition of affairs existing at Clarence, about twenty miles east of this city. A.*433 man by the name of Roberts (meaning this plaintiff), having been operating a creamery at that place for some time past, is about to move his entire plant, leaving the farmers who have been carting their milk to his place the past season entirely out in the cold, cheating them out of several hundred dollars. Having loaded his machinery into a car, he has billed it to Corry, Pa. But the farmers were a little clever and have attached his goods. I do not know as yet what the result will be. He may try to settle with a few and get his goods over the line, in which case he will undoubtedly locate at Corry, as the car is billed there. I make this statement for the benefit of any who may be associated with the deal of bringing this man to your city, and will stand behind all I have written.
“ Trusting these few words of warning may be of some use to you, I remain,
“ Respectfully yours,
“H S. BEAMAN.”
The complaint set forth this article in full, alleged that the statement was false and that the plaintiff had suffered great damage and injury in his business, reputation, mind and body and liad been put to much expense and inconvenience and his business had been completely ruined through the instrumentality of the defendant in causing the publication of the article. There were no allegations of matters of special damage.
The answer of the defendant was a general denial.
The learned counsel for the appellant contends that the defendant was not liable for the publication as he did not write it, or dictate it or in terms request its publication, and that the conversation he had with Braman did not warrant it.
We cannot assent to this contention. The statement of the defendant to Braman contained the substance of the charge as published. It contained a request, in effect, that information should be given to the public of the facts stated in the conversation. The defendant was the instigator of the publication; the moving cause; he cannot escape responsibility for its direct and legitimate effect.
Where a man makes a request to another to publish defamatory matter of which for that purpose he gives him a statement, whether in full or in outline, and the agent publishes that matter, adhering
In Adams v. Kelly (Ry. & Mood. 151) a reporter prepared an article from a conversation with the defendant and inserted it in a newspaper. Abbott, Ch. J., held that what the reporter published in consequence of what passed with the defendant might be considered as published by the defendant.
The serious questions arise upon exceptions to the reception of evidence against the defendant upon the trial. It appeared that there was a creamery at Columbus, Warren County, Penn., a village a few miles from Corry and within the range of the circulation of the Corry Daily Leader. The plaintiff purchased the creamery on the 11th of July, 1896, previous to the publication of the libel (which was on the 2lth day of July, 1896), with a view of operating it himself. The purchase was made of Fred W. Edmunds, who was a witness for the plaintiff upon the trial. Edmunds testified that the plaintiff was to have the possession of the creamery as soon as he could get his goods moved from Clarence Center, but that lie did not take possession of it and he was asked by the plaintiff’s counsel “Why, what happened? Why he didn’t take possession?” The witness answered: “ There was an article published.” The counsel for the defendant objected to this upon the ground that it was incompetent and immaterial and that the plaintiff was not entitled to recover special damages in this action if he is to recover at all. The court said he would overrule the objection, but stated that the question might come up when the case went to the jury upon the question of damages, to which the defendant’s counsel excepted. The witness then proceeded to state that he read the libelous article on the twenty-eighth of July; that that article was the subject of conversation among the patrons of this Columbus Creamery, the village people and the merchants. That at that time he had given the plaintiff a deed of the property but not the possession, and that the witness was still operating the creamery and making butter for the patrons of the concern; that the plaintiff had not come and that
Then the following occurred: “ The Court: What do yon claim from that, that it was communicated to the plaintiff ? Mr. Randall (plaintiff’s counsel): I claim that the plaintiff was unable to take possession of this factory and go on with his work by reason of this article without the loss of a majority of the patronage that went with this factory; that they simply notified Mr. Edmunds that if a man of this character came there to take charge of this factory and handled their butter-— Mr. Jellinek (defendant’s counsel): You are getting that all in; I do not think it is right. The Court; No, he is not getting it in as evidence.
“Mr. Jellinek (the defendant’s counsel): It -has the effect. Mr. Randall (continuing): They wouldn’t patronize him and gave notice to Mr. Edmunds, who was in possession, and as the result Mr. Roberts has never yet— The Court: Well, it is not a claim that they refused to deliver over the possession -— perform the contract, * * * but a claim that this information was communicated to your client.”
To which Mr. Randall assented.
“ The Court: I will receive the evidence, give you an exception (to defendant’s counsel).”
The defendant’s counsel then objected on the ground that it is incompetent and being mere hearsay, „ and said, “ Give me an exception.”
The witness continuing said : “ They (the patrons) said that if I had sold the property to such a man as that they wouldn’t patronize the factory but would go to other factories near by and they would withdraw their patronage; several farmers told me that.”
The witness was then questioned about other factories in that vicinity, and he testified as to several and their locations under objection and the exceptions of the defendant that it was an attempt to prove special damages, and that the plaintiff was not entitled to recover special damages. The witness then, over defendant’s objection and exception, said that these patrons had told him that they had read the article in the paper, and he proceeded to say
The plaintiff produced JIartson S. Ayer, another witness, who resided at Columbus borough. He was a patron of the creamery there, and frequently at the creamery, and he stated that the article in the paper being circulated among the patrons they came to the creamery and talked with the witness about it.
Question by plaintiff’s counsel: “ Q. What did they say to you about what they proposed to do with their milk if this man (plaintiff) came ? ”
This was objected to by the defendant’s counsel upon the ground that it was incompetent and immaterial.
The court overruled the objection, to 'which the defendant excepted. The witness then proceeded to state that the patrons informed him that he ought to tell Mr. Edmunds (the witness before alluded to) to influence the plaintiff not to come there as it would ruin the creamery; that he did so communicate to Edmunds and advised him either to prevent the plaintiff from taking possession of the factory until the plaintiff cleared himself of this stain upon him or sell the factory; that there was another creamery within three miles, a new one, and that the opposition was very sharp.
Finally the plaintiff was introduced as a witness in his own behalf and he was asked why he did not go to Corry, after the publication of the article, by his counsel. The defendant objected upon the ground that it was incompetent. The court overruled this objection and the defendant excepted. The witness testified that they told him it was no use for him to come to Columbus ; that he could not hold the patronage ; that Edmunds was the first man that told him so, and without the patronage the creamery would be useless to him. The counsel for the defendant moved to strike out this evidence, which was refused and the counsel for defendant excepted.
All this evidence was for the purpose of proving special damage,
Thus a loss of customers is a special damage. The plaintiff cannot show the loss of any customers except such as are named. (Backus v. Richardson, supra.)
“Damages,” says Mr. Chitty, “are either general or special; general damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law, and are either super-added to general damages arising from an act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing. * * * It does not appear necessary to state the formal description of damages in the declaration because presumptions of law are not in general to be pleaded or averred as facts. * * But when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, it is essential to the validity of the declaration that the resulting damage shonld.be shown with particularity.” (1 Chitty Plead. 410, 411.)
The objections taken by the counsel for the defendant to which we have referred were broad enough to reach the objection that this special damage was not alleged in the complaint.
The court charged the jury, in effect, it might consider this evidence as to the special damage upon the question of damages. To this there was no exception, but we do not think that the failure to except in this regard was a waiver by the defendant of the exceptions taken by his counsel to the admission of the evidence.
But the proof was in the case in spite of the defendant’s objections, and the only way to relieve the case of the vice of the ad mis
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.