Opinion
January, 1916.
Martin W. Littleton, for plaintiff.
Emory R. Buckner, for Harper's Weekly and Hapgood.
Duell, Warfield Duell, for McClure Publications.
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 article complained of as to encourage the suspicion that the latter also drafted the defenses demurred to. The diffuse, rhetorical, argumentative and repetitious form of the pleading, which includes also many mere items of evidence as distinguished from ultimate facts, has materially added to the labor of analyzing the defenses under examination. Stripped to their bare bones the first and second defenses amount to this:
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 interpreted by an article in its entirety." As to the innuendoes, it was held in effect that where defendants justified an article in its entirety, of which article the libelous words complained of were a part, it was proper in the plea of justification to deny the innuendoes of the complaint. The sufficiency of the defenses was, of course, not involved on said motion. Admitting that a mere denial of innuendoes be proper, and that such a denial simpliciter is sufficient to raise an issue, a denial of innuendoes is clearly surplusage where, as here, the publication of the alleged libel is itself denied. So, too, unnecessary innuendoes, or such as attribute to words their natural and obvious import, are not put in issue by a denial. Morrison v. Smith, 177 N.Y. 366; Haffen v. Tribune Ass'n, 126 A.D. 675. This, I think, is the situation here, for the libelous words alleged in the complaint obviously import the meaning attributed to them by the pleader. It is also apparent that the denial of plaintiff's good repute is no defense. I am thus brought to consider the first and second defenses in the light of their affirmative allegations and as well in the light of the entire article, as distinguished from the excerpts set forth in the complaint. The allegation that the article "is true in substance and in fact" raises no issue (see post). Where the libel consists of a charge of fraud and deceit in the manufacture and sale of a worthless or harmful medicine, I think it is necessary for a plea of justification to allege that plaintiff knew his product was worthless and harmful, and that it was sold with intent to deceive. The essence of the wrong lies in knowledge of the material facts and the evil intent involved in the act of selling. Whenever knowledge and intent are material they should be alleged either expressly or impliedly. Given certain facts, the law itself in some cases presumes the existence of certain other facts. But where the law raises no such presumption, then, whether the situation is one of pleading or of proof, to presume a fact it is not sufficient that the fact to be presumed may be inferable from the primary facts; it must be such as is necessarily implied therefrom. See Jacobs v. Monaton Realty Inv. Co., post.
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 necessarily 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 appear. Nowhere is plaintiff alleged to have been in any way connected with or responsible for the making, vending or advertising, save so far as responsibility therefor may be inferred from the fact that he was "chief owner" of the "company." The pleader has apparently assumed that because plaintiff was such "chief owner" it necessarily followed that he was responsible for all of the "company's" acts, chargeable with their falsity and wrongfulness and, as well, with knowledge of the alleged worthless character of Wine of Cardui and with intent to deceive by the sale thereof. The whole fabric of the defense is based upon this assumption, the infirmity of which is apparent. See Jacobs v. Monaton Realty Inv. Corp., 212 N.Y. 48. Manifestly the defense is bad. There is still a further objection to the defense in question. Inasmuch as justification is pleaded as a complete defense to the whole of the publication, the plea should be as broad as the charge and the very charge attempted to be justified. Fero v. Ruscoe, 4 N.Y. 162; Sawyer v. Bennett, 49 N.Y. St. Repr. 779.
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 those who appeal to the public to buy, and also to comment upon their conduct in that behalf. This latter is but a phase of the right of fair comment generally (Newell Sland Lib [3d ed.] § 702) which has often been confused with privilege. But, as Mr. Odgers says: "A privilege is a right which I possess because I am I; because I hold a particular office or stand in a particular position or confidential relation to some one else. A right which every citizen possesses merely because he is a citizen * * * is no privilege at all." An Outline of the Law of Libel, 42. Privilege is a defense to what might otherwise be libelous; fair comment is not libel at all. The publishers of newspapers stand in no better position with respect to the exposure of frauds or to the right of comment than do other individuals, and any pretense on their part of a "moral duty" in defense of what would not under the same circumstances be lawful for any person is mere cant. When criticism of conduct, of a book, or of a commodity, is invited by the occasion, it must be confined to the action, work or thing. If it goes beyond this, and especially if it attacks the author or individual, the critic writes at the peril of being held for libel. Whether the bounds of fair comment have in the particular instance been exceeded is usually a question for the jury, but it is too much to say that it is always such. Triggs v. Sun P. P. Assn., 179 N.Y. 144, 154; Press Pub. Co. v. Gillett, N.Y.L.J., Dec. 22, 1915.
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" was used might be open to question, but any such defense would be raised by denying the charge or the innuendo. If false, the charge would obviously be defamation, not comment. If the charge were true as laid, it would be open to the defense of justification, but if asserted to be comment its appropriateness as such should be dealt with as a question of law. Applying these principles to this case, we find that under the guise of an article purporting to disclose the worthless character of a so-called medicine, manufactured and sold by a "company," of which plaintiff was the "chief owner," and also purporting to expose the falsity of the assertions of the curative value of the medicine made by the "company" in its advertising (but with the affairs of which "company" plaintiff is not alleged to have been connected otherwise than as such "owner"), defendants have in substance called plaintiff a swindler, a fraud and a health poisoner, have held him up to odium by comparing him with a "cadet" and a "panderer," and have asserted that by methods characteristic of such creatures he has become rich and influential. In respect of the defense I am now discussing, and aside from the objection that the plaintiff is not alleged to have taken part in the business of advertising and vending Wine of Cardui or to have had knowledge of its alleged fraudulent nature, save as "chief owner," the defendants' words concerning plaintiff can in no sense be deemed comment, and it should be so determined as matter of law.
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 by further allegations to the effect that defendants had used due care to ascertain the truth of the numerous facts constituting the substance of the article complained of, all of which facts they believed to be true, it is asserted that defendants' charges against plaintiff and their reflections upon his character were no more than fair comment. The bare denial that the article was "true in substance and in fact" is worthless. Bingham v. Gaynor, 203 N.Y. 27. But it lies at the foundation of the defense of fair comment that the facts commented on are true, and mere belief in their truth is insufficient. Fry v. Bennett, 5 Sand, 54; Bingham v. Gaynor, supra, 33; Triggs v. Sun P. P. Ass'n, supra, 154.
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.