49 A.D. 247 | N.Y. App. Div. | 1900
Lead Opinion
The action was brought to recover damages for a libel which the defendant had published, the complaint alleging that the plaintiff,
The action came on for trial, and the defendant, to sustain a. defense set up in the ansAver, proved that he received the article in question from the “ Associated Press,” and that the article as published Avas substantially as it Avas received; that the plaintiff had theretofore commenced an action against the “ Associated Press ” for publishing an article which contained substantially the same charges against the plaintiff, and had obtained a judgment against the Associated Press in that action, Avhich iudgment had been satisfied. Upon this evidence the defendant moved to dismiss the complaint on various grounds, one of which was that the recovery of the judgment, in the suit of the plaintiff against the “ Associated Press ” and the satisfaction of said judgment, is a bar to the present action. The court dismissed the complaint, relying upon the case of Union Associated Press v. Press Pub. Co. (24 Misc. Rep. 610).
The claim of the defendant, which was sustained by the court below, is that, by sending this article to each nervspaper, the Associated Press became a joint tort feasor with each neAvspaper which received and published the news, and that thus the Associated Press, became responsible with each particular newspaper which published the report, and was liable in a suit by the plaintiff for the damages, sustained by it by virtue of each publication; and that when the plaintiff elected to sue the “ Associated Press ” for the libel published by it, it had the right to include in one action the damages, that the plaintiff sustained in consequence of the report being sent to each newspaper by the “ Associated Press,” and thus, in one action, to make the Associated Press liable, not only for the injury
The act of the “ Associated Press ” thus involves several separate publications, for each of which it would be liable: First, the original, publication of the article by sending it to its customers; and, second, its publication by the insertion of the article in each particular paper. The sending of this report or dispatch to the various newspapers that the “ Associated Press ” supplied with news would be a publication óf the libel, although not a single newspaper printed the article; and for that dissemination of a libel the “ Associated Press ” would he liable to the plaintiff. A separate and distinct cause of action arises in favor-of the plaintiff against the publishers of each newspaper that accepted the article and published it; and for the damages sustained by such publication the Associated Press would be liable as a joint tort feasor with each newspaper thus publishing the libel; but this last liability of the “ Associated Press ” is entirely distinct from that which it incurred by the publication of the libel in sending it to. each of its correspondents. The plaintiff could no more join in one action against the Associated Press the different causes of action which arose because of the successive publications in different newspapers than it could join in one action the several causes of action against the owners of the several newspapers that published the libel.
Upon turning to the complaint in the action against the “ Associated Press ” it does not appear that the cause of action there sued on was other than the cause of action for the publication of the libel by sending the same to the various newspapers that it supplied with news. By the 8th paragraph of such complaint it is alleged that on.
I think it follows from these allegations that the complaint alleged but a single cause of action, namely, to recover the damages sus
Here the “ Associated Press” published the libel by sending it to its correspondents. For that publication an action was brought and recovery had. The defendant, as publisher of a newspaper, to whom the Associated Press had sent the libel, republished the same defamatory matter, and to recover for such publication this action was brought. Each of these publications was a new and distinct injury, and for it the plaintiff was entitled to maintain a distinct action. A satisfaction of a judgment recovered in one action would not, it seems to me, be a satisfaction of the others. It could not,
The defendant also seeks to sustain this dismissal upon the ground that the article complained of is not libelous per se as to the plaintiff, and hence that special damage should have been alleged and proven; and that as no such allegation was alleged and proved, the complaint was properly dismissed. It is now settled, however, that a corporation may sue for any libel upon it as distinct from a libel upon its individual members, and that a corporation engaged in business may maintain an action for libel without proof of special damage where the language used concerning it is defamatory in itself ■and injuriously and directly affects its credit and necessarily and directly occasions pecuniary injury. (13 Am. & Eng. Ency. of Law [1st ed.], 448, and cases there cited; Mutual, etc., Assn. v. Spectator Co., 50 N. Y. Super. Ct. 460.) This libel in question charged the plaintiff as a business corporation or association with stealing the dispatch from the Associated Press by means of tapping wires used by the Associated Press for sending its news messages, and is thus a direct attack upon its business methods, and, if believed, necessarily injures its business; and the complaint alleges that by “ reason of the publication of said article by the defendant and its being read, as aforesaid, the reputation of the plaintiff was greatly damaged, and the confidence which theretofore had been reposed in it and in its reliability as a collector and purveyor of news, as aforesaid, by the public generally was lost, and persons who
It follows that the complaint was improperly dismissed, and the-judgment appealed from must he reversed and a new trial ordered,, with costs to the appellant to abide the event.
Patterson and O’Brien, J.J., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.
Dissenting Opinion
This action was brought to recover damages alleged to have been sustained by the publication of an article in a newspaper known as. the Cincinnati Commercial Gazette.
The article referred to was made a part of the complaint, and, in substance, charged the plaintiff with stealing news from the Associated Press, a rival corporation, engaged in the same business, by tapping its telegraph wires.
The answer — among other defenses pleaded — alleged that the plaintiff, prior to the commencement of this action, brought an action in the Circuit Court of the United States for the southern district of New York against the Associated-Press, to recover damages for the publication by the defendant of the article referred to, and in that action a recovery w^as had by the plaintiff and the judgment was thereafter paid and satisfied, and that the recovery and satisfaction of the judgment in that action precluded the plaintiff from a recovery in this one.
At the trial, the defendant, to sustain this defense, proved that at the time of the publication of the article referred to, the Cincinnati Commercial Gazette Company published a daily newspaper, of which the defendant was the editor ; that it was a subscriber to the Associated Press, and, as such, received from it, by telegraph, the-article, and the following day published it verbatim, as received, adding only the headlines. He then offered in evidence the judgment roll in the action in the United States Circuit Court, and proved the payment and satisfaction of that judgment.
At the close of the evidence, the defendant’s counsel moved to-
The defendant contends, and his contention was sustained in the court below, that he and the Associated Press were joint tort feasors as to the publication in the Cincinnati Gazette of the article set out in the complaint; and if he is right in this, then it necessarily follows that the complaint was properly dismissed and that the judgment appealed from must be affirmed. That a libel may be the subject of a joint action cannot, we think, be seriously questioned. The author, the publisher, the seller and every other person who knowingly does the wrong is liable, and an action can be maintained against them, either jointly or severally. (Youmans v. Smith, 153 N. Y. 214; Thomas v. Rumsey, 6 Johns. 26; 2 Add. Torts, 364; Townsh. Sland. & Lib. § 119.)
These authorities, and many others that might be cited, are sufficient to show that a libel may be the subject of a joint action, but we do ‘ not understand that it is seriously contended by the appellant’s counsel that such is not the law. He urges, however, that the Associated Press and the Cincinnati Commercial Gazette are not jointly liable, because it was not the same publication, and, therefore, the recovery against the Associated Press does not preclude the recovery against this defendant. The Associated Press, it will be remembered, composed the article and sent it to the Gazette, its subscriber, as news to be published in that paper. It necessarily knew and intended that the article should be published in the Gazette, and read by its patrons. It sent the same article, it is true, to the New York World, the Chicago Evening Post, and other newspapers, and the same was published in those papers. This, of course, did not make the World and the Post, or any of the other papers, jointly liable with the Gazette, but the publication in the Gazette, having been sent with the intent that it should be there published, made the Associated Press and the Gazette jointly and severally liable to the plaintiff for all the damage which that publication caused him. It cannot be otherwise. The act, in sending
It is undoubtedly true that the sending of the article by the Associated Press to its correspondents with the intent that the same should be published, constituted a publication of it to such an extent that the Associated Press would be liable, but that was not the cause of action alleged in the action in the Circuit Court. On turning to the complaint in that action it will be found that the action was brought to recover damages, not for sending the article to its correspondents, but because its correspondents published and circulated the article. Thus, in that complaint, it was alleged:
“ Eighth. That on or about January 14th, 1895, the defendant * * * sent out for publication to a large number of newspapers in various parts of the United States, and communicated to various persons, the article set forth in the ninth paragraph of this amended complaint, and caused the same to be published of and concerning plaintiff, as hereinafter set forth, * * * .
“Eleventh. That said article was transmitted by the defendant to a large number of newspapers throughout the United States and was published by them * * * and * * * defendant knew and intended that the same should be read by a large number of persons throughout the United States, * * * .
“Twelfth. That said article was published in a newspaper known as The ‘ World,’ issued in the city of New York, and in various other newspapers and as so published, charged in effect, that plaintiff*257 and. said Brewer stole news of the defendant by tapping its wires, and that the said Brewer was a notorious wiretapper.
“Fourteenth. That by reason of the publication of the said article by the defendant, and its being read as aforesaid, the credit of the plaintiff was greatly damaged * * * .”
It is thus seen that the complaint in that action charged the defendant The Associated Press with having sent the article to its subscribers for publication; that it was published by them, and by reason of the publication the plaintiff had been damaged. For this, the Associated Press was held liable. Damages were recovered in that action, because of the fact that the Associated Press sent the article to various newspapers for publication, and they published and circulated it. The complaint certainly was broad enough to admit evidence that the article was published by the Cincinnati Commercial Gazette. Plaintiff could have proved that fact upon the trial, for the purpose of enhancing his damages. The publication of the libelous article by the Cincinnati Com/mercial Gazette,' or any other newspaper, made it and the Associated Press joint wrongdoers, and when the plaintiff selected the author of the article (the Associated Press), brought an action and recovered a judgment, that judgment, when paid, was in full satisfaction, for the entire wrong, of all of the damages which the plaintiff had sustained by the entire publication. If this conclusion be correct, then it necessarily follows that the recovery and payment of the judgment in the action in the United States Circuit Court was a complete defense to this action, and for that reason the complaint was properly dismissed.
It follows that the judgment appealed from must be affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.