102 A.D. 480 | N.Y. App. Div. | 1905
The alleged libel, “ She went to a prison for an operation. She ¡sank so low. She said it cost $5 and that her screams were heard all over the block,” was contained in a report of a judicial proceeding published by the defendant; by mistake the word “ prison ” was substituted for “ person.” The obvious meaning of the charge was that the plaintiff had submitted to a criminal operation on account of which she had been sent to prison. The words used were libelous per se, and the defendant’s claim of privilege was not sustained by the proof.
The learned trial court dismissed the complaint upon the ground that the plaintiff, having alleged a special meaning which the proof ■failed to establish, had precluded herself from insisting upon the natural meaning of the words used. Since this case was tried, however, the Court of Appeals has held that “ When the plaintiff in an ■action of libel has, by innuendo, put a meaning upon the alleged libelous publication which is not supported by its language or by proof, the court may, nevertheless, submit the case to the jury if the article is libelous per ss.” (Morrison v. Smith, 177 N. Y. 366.)
The judgment and order must be reversed and a new trial granted, ■costs to abide the event.
Hirsohberg, P. J., Woodward, Jerks and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.