Opinion
Argued November 23, 1881
Decided December 15, 1881
E.T. Wood for appellant. Elbridge T. Gerry for respondent.
The complaint in this action sets forth as causes of action, separately, six distinct articles, published at six different times. A demurrer is interposed to the first two causes of action, the articles set forth in which do not name the plaintiff. The alleged ground of demurrer, so far as these two causes of action are concerned, is that each one is self-contradictory, inasmuch as it alleges that the article stated was published of and concerning the plaintiff, while it elsewhere contradicts this averment by allegations which are entirely at variance and inconsistent with it.
The counsel for the defendant insists that the complaint shows affirmatively that the article set out as the first cause of action was not published of, or concerning the plaintiff, and as it answers itself, the demurrer was well taken. In determining the question presented, it is important to examine the complaint for the purpose of ascertaining the nature of the allegation stated, and the basis upon which it is constructed. At the outset it alleges that the plaintiff was in business at a certain place which is named, and had conducted the business stated upon said premises. After the usual allegation that he had maintained a good reputation and credit, it proceeds to state that he had never been guilty of any violation of the laws of this State; nor in any manner a copartner, owner or agent in any business or calling such as is described in the libel hereinafter set forth, or in the production of milk, or distillery swill, so called, or distillery waste or grain, or the ownership or care of cows, or the keeping of cows, or the feeding of cows, or of any of the offenses charged in the libel set forth.
Immediately afterward follows the allegation of the publication of the libel, which is set forth verbatim, and a perusal of which discloses that such a business as the complaint alleges that the plaintiff had not been engaged in, was conducted by the firm of Gaff, Fleischmann Co., and that the libelous matter related to this business, and to the last-named firm, and to no other person or persons who were not members of that firm. The libel referred to was evidently directed against, and intended to embrace the persons mentioned. The complaint nowhere negatives the averment that the firm of Gaff, Fleischmann Co. were the parties engaged in the business mentioned therein; and under such a pleading, therefore, it cannot be claimed that any other persons besides the members of the firm were referred to, or intended to be included in the libelous charges made. As the libel neither describes nor refers to the plaintiff, nor to the business in which he was engaged, but names a different business, and a firm of which in a preceding portion of the complaint it is alleged he is not, and never was a member, it is manifest that the plaintiff cannot in any way be connected with the libelous matter set forth.
Instead of averments that the plaintiff was engaged in the business named, and was a member of the firm so engaged, it is denied on the start, and stated to the contrary, that he was engaged in another and a different kind of business. Under the allegation in the complaint as to plaintiff's business, and that he was not connected in any form with the business described in the libel, with a statement of the publication showing on its face that it did not relate to, and was not published of and concerning the plaintiff, it is not apparent in what form or upon what theory the portions of the complaint demurred to can be upheld.
The learned counsel for the plaintiff, however, claims that it is not a necessary ingredient of the libel that the person intended should be named; and it is a question for the jury to determine whether the publication referred to the plaintiff, and caused him injury. While, no doubt, an action for libel may be maintained where the plaintiff is described in the libelous matter, directly or indirectly, without his name, and is pointed out so that it is capable of direct proof that he was intended; yet where the allegations negative such a conclusion and show to the contrary, this rule has no application. There is no principle which authorizes the introduction of any such evidence, where, on the face of the complaint, it is clearly apparent that the libelous words do not relate to, and have no connection with the plaintiff, or his business as stated therein.
The authorities cited by the learned counsel for the appellant have no application, when the complaint plainly shows that the plaintiff was not intended as is the fact here. The omission of the name, or an ambiguous description of the person, or even words used in an uncertain and doubtful sense which require extrinsic evidence to explain, may be rendered sufficiently certain by proper averments with a colloquium. (Folkards Starkie on Libel, § 434); but there are no such allegations in the complaint as brings the case at bar within the rule laid down. The averment that the publication was of and concerning the plaintiff does not, we think, obviate the difficulty inasmuch as the previous allegation as to the plaintiff's business, and that he was not engaged in the business described in the libel, shows that it could not and did not relate to the plaintiff, and hence it is not applicable to the facts set forth in the pleading.
The defects which exist as to the first alleged cause of action are not obviated or cured by the innuendo which afterwards recurs, "meaning the plaintiff," for the language of the libelous article will not bear any such interpretation when considered in connection with other averments, which allege that the plaintiff was engaged in other business, and had no connection with the firm of Gaff, Fleischmann Co. Under the Code of Civil Procedure, § 535, it is not necessary to state any extrinsic facts for the purpose of showing the application of the defamatory matter to the plaintiff, and the question in regard thereto is covered by the averment that it was published of, and concerning the plaintiff, and when such averment can be held to apply, and is not as in this case contradicted and rendered nugatory by other allegations. The innuendoes here are falsified by averments, that the plaintiff was engaged in other business, that he was never in the milk business, nor a partner of Gaff, Fleischmann Co. The libelous articles assail the proprietors of the Blissville milk establishment, and their agents. The plaintiff denies all connection or association with that concern, and thus asserts that he is not one of the persons intended by the libel. It was aimed and directed against the firm, and not against plaintiff, who claims he had nothing to do with them, and hence he could not be injured thereby. An innuendo does not enlarge the matter set forth specially in other portions of the complaint. It only explains the application of the words employed, when not justified by the antecedent facts to which it refers, so that rejecting it the words are not actionable, a demurrer will lie. ( Caswell v. Raymond, 2 Abb. Pr. 193; Blaisdell v. Raymond, 14 id. 446-458; Fry v. Bennett, 5 Sandf. 65.)
While the section of the new Code cited dispenses with the necessity of averring, in detail, the facts which evince who was the person intended, it does not authorize the plaintiff to prosecute his action after he has made a complete denial of his connection with, and of the application of the facts stated in the alleged libelous matter to himself on which it is founded. It cannot, we think, be fairly claimed that the statement that the name was familiar sufficiently points to the plaintiff, so as to indicate that he was intended, or that from this or any other allegation referred to there was any question of fact for the jury as to whether the plaintiff's bread was alluded to.
In regard to the article set forth as the second cause of action, no cause of action is made out for the same reasons which affect the first cause of action. It is aimed at and denounces the management described, and the Blissville Distillery, giving details as to the offensive character of the same, and referring to the statute and citing the same as applicable to Gaff, Fleischmann Co. It makes no charge against the plaintiff, and does not connect him with the copartnership.
It does not distinctly allege that the firm named are the owners, but leaves the inference to be drawn, from the previous reference to them, that they were the owners, and the complaint, as already stated, absolutely denies that the plaintiff was a member of any such firm, or that he was the owner of the Blissville establishment, or had any interest whatever in any such business.
By this denial it is manifest, as a matter of law, that neither of the articles can be held to apply to the plaintiff. It may also be remarked that the second article cannot be regarded as having any defamatory application to any person who is not a member of the firm. The count, in the complaint referred to, we think, cannot be upheld upon the ground that it contains but one cause of action, and is not susceptible of any such construction. It is divided into several parts, alleges several distinct causes of action, arising out of several articles published on different dates, each of which is separately numbered and is treated as such by the plaintiff. It cannot, therefore, be regarded as embracing only one separate and distinct cause of action. It is not apparent in what manner the plaintiff could unite these several and distinct libels, as one single cause of action; nor is there is any ground for claiming that either one of the articles is set out as a matter of inducement to the others, or any of them. Regarding the language employed, the intention of the pleadings to be derived therefrom, and the various libels which constitute the gravamen of the action, there is no reason for claiming that but one cause of action is set forth.
The allegation of the plaintiff as to the causes of action demurred to is that the libelous articles published related to himself, while on their face it is clear that they had no reference either to him or to the business in which he was engaged.
We think the General Term was right in its judgment, and that the same should be affirmed.
All concur.
Judgment affirmed.