214 A.D. 437 | N.Y. App. Div. | 1925
The action in which these appeals were taken was brought by the plaintiff, a physician, and manufacturer and distributor of
The answer of the defendants set up three defenses: First, justification; second, fair comment and criticism; and, third, mitigation.
The plaintiff made three motions: First, the plaintiff moved, under section 241 of the Civil Practice Act and rule 103 of the Rules of Civil Practice, to strike out from the first separate defense set forth in defendants’ answer some seventy paragraphs on the ground that the allegations therein contained were either evidentiary, repetitious, irrelevant or unnecessary. By a separate motion the plaintiff moved to strike out from the second separate defense set forth and alleged in the answer of the defendants six paragraphs of the second separate defense set forth in said answer as redundant, repetitious, unnecessary or irrelevant. The plaintiff also served a third notice of motion for an order striking out the entire second separate defense contained in the answer on the ground that said defense was insufficient in law. All three motions made "by the plaintiff to strike out were returnable at Special Term on the same day and were heard as one motion. The learned justice presiding at Special Term denied all three motions, and the present appeals are by the plaintiff from the orders of the Special Term denying plaintiff’s said motions.
The plaintiff’s complaint sets forth in extenso and by photostatic
As to the various paragraphs contained in the first separate defense set forth in the answer herein, and which the plaintiff asked to have' stricken from the answer, I think said paragraphs are open to the criticism made by the plaintiff, and that the paragraphs indicated are, as claimed by the plaintiff, many of them, repetitious and unnecessary, and that many of said paragraphs are merely the statement of evidentiary matter, a large part of which could not be established by competent evidence, and that the same should have been stricken out by the court at Special Term. The office of a pleading is defined by section 241 of the Civil Practice Act, which provides that: “ Every pleading shall contain a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence by which they are to be proved.”
By rule 103 of the Rules of Civil Practice it is provided that: “ If any matter, contained in a pleading, be sham, frivolous, irrelevant, redundant, repetitious, unnecessary, impertinent or scandalous or may tend to prejudice, embarrass or delay the fair trial of the action, the court may order such matter stricken out, in which case the pleading will be deemed amended accordingly, or the court may order an amended pleading to be served omitting the objectionable matter.”
I think the paragraphs of the first defense to which our attention is directed by plaintiff’s motions were clearly improper under section 241 of the Civil Practice Act and that the same should have been stricken out under rule 103 of the Rules of Civil Practice. (President & Directors of Manhattan Co. v. Morgan, 199 App. Div. 767; Peabody, Jr. & Co. v. Travelers Ins. Co., 206 id. 206; Winter v. American Aniline Products, Inc., 236 N. Y. 199.) In so far as the allegations mentioned were not repetitious or irrelevant, they were evidentiary and had no proper place in
In view of the unanimous opinion of this court that the entire second separate defense contained in the answer to the amended complaint should be stricken out for insufficiency, it is unnecessary to pass upon the particular paragraphs of said second defense which the plaintiff, by his second motion, asked to have stricken out. The entire second defense being out, the paragraphs which plaintiff moved to strike out for other reasons are included.
As to the plaintiff’s third motion, to strike out the entire second defense contained in the amended answer of the defendants, on the ground that it was insufficient in law and as not being a fair comment and criticism of plaintiff and his activities I am of the opinion that the said defense should have been stricken out, and that the court improperly denied the motion of the plaintiff with reference thereto.
The publication in question stated, in effect, that the vaccines manufactured and distributed by the plaintiff were dangerous and had been known to cause death. The published article classifies the plaintiff with “ notorious vendors of patent medicines,” and “ charlatans,” and charges that doctors allow themselves to be
It is the contention of the appellant that fair comment cannot be set up as a defense to the publication in question; that the publication contained assertions of positive fact, and was not a fair statement of judgment or opinion. It is plain that many of the statements contained in the alleged libelous article could not be classified under the head of fair comment and criticism. They are assertions of positive facts. It is stated that the plaintiff’s vaccines are injurious and have been known to cause death. This certainly is not a comment, but a statement of a positive fact. As a whole, the article is not the statement of an opinion or judgment, but purports to state positive facts. The question as to whether or not the writings complained of were merely comment and, therefore, not libelous, or whether they were statements of facts and attacks on the plaintiff and were libelous per se, is a question of law to be decided by the court. Fair comment and criticism does not constitute libel but is merely the expression of opinion. “A comment, as we have already stated, is the expression of the judgment passed upon certain alleged facts by one who has applied his mind to them; and who while so commenting, assumes that such allegations of fact are true. The assertion of a fact is not a comment at all.” (Odgers Lib. & Sland. [5th ed.] 197.) Of the many positive facts stated in the alleged libelous publication are, that the plaintiff’s vaccines have caused death; that no well-regulated hospitals use vaccines; that these vaccines do not cure the maladies they purport to cure, but are dangerous to health, and often to life; that the plaintiff is careless and unscientific; that he puts out false advertising; that he deceives and exploits doctors to his own financial gain. Surely such statements are neither a comment nor the statement of an opinion, but of positive facts. Newell on Slander and Libel (4th ed. p. 522) says: “ The distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. To state matters which are libelous is not comment or criticism.” In Odgers on Libel and Slander (5th ed. p. 196) it is said: “ It is then a defense to an action of libel or slander that the words complained of are a fair comment
In the answer of the defendants the defense of fair comment is pleaded as a complete and separate defense to the entire article. Fair comment might properly be a defense to as much of the article as can be said to be comment. It cannot, however, be a complete defense to the whole article because of the many positive statements of fact contained in the article which are clearly libelous. A defense in a libel action pleaded as a complete defense must be as broad as the charges made in the alleged libelous publication. In Bingham v. Gaynor (141 App. Div. 301) the court struck out a plea of justification which was set up as a defense to the whole publication, on the ground that the plea did not attempt to justify all the charges made against the plaintiff by the defendant. . The plea set up as a complete defense was no defense to all the charges made in the publication. In the case at bar some portions of the article might be regarded as fair comment, but, as much of the article is clearly not witlrn that classification, being merely defamatory statements of fact the defense of fair comment does not constitute a complete defense and should have been stricken out. Furthermore, it seems to me that the defense of fair comment cannot be urged where the article in question attacks the professional or personal character of the individual. |Undoubtedly fair and honest discussion of a work of public interest or of the acts of a public official may be justified as fair comment, but if the individual himself or his motives are attacked the article ceases to be privileged^ It would have been entirely proper to have discussed the wide sale and distribution of the plaintiff's vaccines, concerning their value and efficacy as remedies for certain ailments. It would have been quite proper for the defendants, in commenting thereon, to have expressed their personal opinion of the efficacy of plaintiff's remedies, but the
I am, therefore, of the opinion that the motion of the plaintiff to strike out the entire second defense as insufficient should have been granted.
The orders denying plaintiff’s motions to strike out from the
Clarke, P. J., and McAvoy, J., concur; Dowling and Martin, JJ., dissent from so much of the conclusion reached by the majority of the court herein as reverses the order and grants the motion in respect to the first defense.-
First order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Appeal from second order dismissed, without costs.
Third order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.