Opinion
January 9, 1945.
Action by Arthur Horovitz and another against Inez C. Weidenmiller for Libel in falsely charging plaintiffs with larceny.
Judgment for plaintiffs for 6 cents.
Kommel Rogers, of New York City, for plaintiffs.
House, Grossman, Vorhaus Henley, of New York City, for defendant.
In some respects, this nonjury libel action is one of the strangest that has ever come to my notice, in that the irreconcilable factual contradictions are mystifying. The basic issue is quite simple — whether the defendant received from the plaintiffs the identical mink coat which she purchased from them for about $2,000, The plaintiffs stoutly insist that the defendant received the coat she selected, whereas the defendant just as robustly protests that the coat she selected and paid for is not the coat delivered to her. She is supported in her position by a far consultant, who examined the coat before it was bought, as well as after the sale, when the defendant became suspicious that there has been a switch. As frequently happens in cases presenting a simple question, locating the answer is far from easy.
There are two causes of action, one by the individual plaintiff, and the other by the corporation which the individual owns and controls.
The alleged libel revolves around the defendant's charge that the plaintiffs switched coats, and is contained in a letter composed by the defendant in longhand, and then read to and typed by a stenographer. The letter, addressed and registered to the individual plaintiff, is denounced by the plaintiffs as falsely and maliciously charging the plaintiffs with the crime of larceny, and various other misdemeanors. The letter follows:
"19 East 88th Street "New York, N. Y.
"May 9, 1944.
"Horwitz of London, "547 Madison Avenue, "New York, N. Y.
"Dear Mr. Horovitz:
"I am writing to you regarding the dishonest deal which you gave me in the mink coat which I bought from you in good faith, believing it to be the coat that I had selected, chose, had analyzed by the best expert in the country and paid for, all in good faith. You switched coals and gave me in its place, an old and inferior coat which has gone to pieces. The coal I had chosen was different in most every way. It was new and made up of freshly dressed skins.
"When I came in to take my coat, The new lining which naturally was to have been put in my new coat, had been put in this old coat that you gave me and I didn't have an opportunity to see the back of the skins and the inside of this old coat which you gave me rather than my new one. I did not examine the coal more than casually. I carried it out on my arm — I did not wear it, I took your word and not for once did 1 ever have one thought that you would dare to be so bold and dishonest as. to switch coals as you did.
"Your praise and lavish promises of the new coat were so convincing and Mr. Bachrach's report and analysis of that new coat were, such that I, out of the kindness of my heart, offered to write you a letter staring the merits of that coal, and my faith in your honesty and the garment you were selling me. You counted on this letter and its protection against the consequences of the dishonest switch in coats, and that is why you acted so deceptively to me. That letter, I never wrote. I became very ill with aplastic anemia and went to the hospital. I wrote to you while I was in the hospital and told you that I had been too ill to come in and select a fur jacket as I had planned to do. I stated to you that my coat looked beautiful and that I only hoped it would stand up and wear. I have a copy of that letter. My coat was so highly glazed that it looked beautiful to an inexpert eye. I have since learned that `all that glitters is not gold'. Experts who saw my coat, began to point out very serious defects in it. The coat matted badly and it never hung right; it hung way off the shoulders and had no semblance of line or style. This was quite contrary to the characteristics of the new coat I had chose, had analyzed and paid for in good faith.
"I had worn that coat a very few times because of my illness.
"Last Fall my coal looked worse. Each time I wore it, I became more aware of the condition of the coat and deterioration, and the lack of fit or style. I came in and asked you about fixing the coat. You assured me that it wouldn't cost much. Well, really. Miss Kate and you went into almost hysterical and incoherent statements of lavish praise about the value, beauty, merits and bla, bla, bla, of the coat. You asked me then about the letter of praise and Bachrach's report which I had sincerely offered to extend to you after I had chosen and had Mr. Bachrach analyze and I had paid for the beautiful and fine coat which I thought I was to receive but which you never gave me. You broke your contract.
"I told you then, and I also told the tall brunette, known variously as your wife, and I also told Miss Kate, that I would write no letters until I saw how my coat was going to wear and stand up. I went into the hospital again, that very evening in fact. I had no use from my coal all winter as I was ill. This Spring I wore the coat a few times and with at very sad awakening. This coat has broken down and gone to pieces due to its inferior condition when you sold it to me, instead of the fine coat which I thought I was receiving far my money.
"Experts have made thorough examinations and analysis of this dreadful old coat over a period of many months. It is of no value to me or anyone else desiring a good mink coat and service from same. This coat is inferior in all ways to the coat I had selected, had analyzed and paid for, and thought I was receiving in good faith.
"This matter is labeled grand larceny by those who know the laws in our great land.
"I am going to give you a generous opportunity to save yourself and others serious legal processes and also a chance to do an honest deed. I request that you refund to me my $1,998 and fake back this dreadful old coat which you give me instead of the new coat which I selected, had analyzed and paid for, and sincerely believed I was receiving. If I am left with the alternative of proceeding against you by legal measures, I shall do so and I shall spare no expense, time or honest effort to see that you face all the charges in this matter and that justice is done. I am convinced that this is not your first offense.
"Mr. Horovitz, where is your character? You should be ashamed of yourself. You are in a great and fine country, a country which has offered you freedom, a peaceful haven, opportunity and success. You repay these great privileges by acting dishonestly and making yourself unworthy of citizenship in these United States. America is for honest and law-abiding people, not those who break our laws, cheat our Government, swindle our citizens, cause prejudice, broken faith and expense to our taxpayers and courts.
"Of course, you will have your alibi and excuses. Anyone who would act so dishonestly, certainly has a wide orientation. Whatever — I am going to have my money back, and justice in this matter, otherwise the law can take its course which might be the finest thing for American Society.
"I shall await your reply and my refund of $1,998 by Friday noon, May 12, 1944.
"Very Sincerely,
"(Signed) Ivey C. Weidenmiller, "Mrs. C. R. Weidenmiller.
"Sworn subscribed to before me this 9th day of May, 1944.
"Winifred Zieger, "Notary Public"
The defense is Justification — that what the defendant said of the plaintiff was true. This defense is more elaborately set forth in defendant's answer as follows:
"Eighth: The defendant justifies the alleged libelous untrue matter set forth in the complaint in that she avers that the matter complained of was and is substantially true in each and every part thereof, namely that on January 19th, 1943 the plaintiffs, showed to the defendant a natural mink coat and offered the same to the defendant for sale at the price of $1,800.00; that the defendant had the mink coat examined on said day by an expert in furs, and thereafter on January 22nd, 1943 defendant purchased the said mink coat for $1,800.00 plus taxes at which time plaintiffs delivered a mink coat to defendant; that the plaintiffs represented and stated to defendant that the mink coat so delivered to her was the same and identical coat which they showed to her on January 19th 1943 as aforesaid; that the defendant believed and relied upon the plaintiff's representation that the coat delivered to her was the same and identical coat shown to her on January 19th, 1943.
"Ninth: That the aforesaid representation made by the plaintiffs to the defendant that the mink coat delivered to her on January 22nd, 1943 was wholly false and untrue; that the coat delivered to the defendant was actually not the same coat shown to her on January 19, 1943 is represented by the plaintiff to the defendant at the time of delivery, but was actually a mink coat of greatly inferior quality and grade; the plaintiffs well knew such representations were false and untrue and falsely and fraudulently made the same with the design and intent to cheat and swindle this defendant; that the plaintiffs knew that the defendant relied upon their false and fraudulent misrepresentation; that by means of false, dishonest and fraudulent actions of the plaintiffs, defendant was cheated and swindled of her coat as well as her money; that the contents of the said letter complained of in plaintiffs' complaint did not charge and were not intended to charge the plaintiffs with dishonesty, swindling or larceny except in the manner aforesaid".
Thus, the basic issue is whether or not the defendant received the coat she originally examined and paid for. Not only do the versions of plaintiffs and defendant clash on this fundamental question, but they are hopelessly at variance concerning other salient factors surrounding the transaction.
The defendant's version is that on January 16th, 1943, enticed by an advertisement in a fashion magazine, she went to plaintiffs' store, never having visited it before. There she met Mrs. Kates, a saleslady, and requested a look at the advertised mink coat. Two coats were exhibited. In response to a question from Mrs. Kates, defendant told her she wanted to spend "under $2,000." Then the individual plaintiff, Horovitz, appeared and talked to Mrs. Kales, who told him what defendant wanted, whereupon he said, in substance, "I have just the coat you are looking for". He went into an adjoining room and returned with an unlined mink coat, which defendant tried on and found satisfactory, the price equally right.
Defendant then told both Horovitz and Mrs. Kates that she was in the midst of an altercation with another furriers concerning a coat, that she had, in fact, complained about it to the District Attorney, and that, consequently, she would not purchase another fur coat until it had been examined by an export. No objection was interposed to the proposal, indeed Horovitz welcomed the examination. Later that day defendant returned with her husband, who inspected the coat on her, and he, too, told Mrs. Kites and Horovitz that he would not permit the purchase until the fur expert examined the coat. The defendant insists that the coat she selected was in the store and was shown to her on her very first visit, that she was never told the plaintiffs would obtain a coat elsewhere and advise her when to return to inspect it.
In connection with defendants complaint concerning her previous experience with a fur coat, she had met Max Bachrach in the District Attorney's office. It was Mr. Bachrach, therefore, to whom defendant turned, as a fur expert, for advice about the Horovitz coat. The defendant met Bachrach at the Horovitz store; and in the presence of defendant and Mrs. Kates, Bachrach examined the coat for one-half hour to determine its quality and to appraise its value.
Defendant's version is that Bachrach made a careful examination of the skins as to color, blend, dressing and workmanship. He counted the skins. From notes then taken, he made a written report to the defendant finding, "The peltries used in this garment are ranch mink of excellent dark blue brown color, of good quality and character. These peltries are of recent collection and have been recently dressed and, further, the manufacture of this garment has been executed in a satisfactory workmanlike manner". He testified that "satisfactory workmanlike manner" meant that the skins were well matched and blended; furthermore, he affirmed, the skins were not more than a few months old. He removed a few hairs which he took to his laboratory for a dye test, but these hairs were not produced on the trial. He swore that no sawdust was present in the coat and that the leather of the skins was light cream in color.
After Bachrach's inspection of the coat he left with defendant, who rode downtown in a taxicab with him. En route she told him the coat could be had for around $1,600. (exclusive of taxes) and he expressed the opinion that the coat was worth in the neighborhood of 52,600 (exclusive of taxes), that it was a fine coat and a good buy. She went with him to see if the skins were dyed.
Continuing with defendant's version, she says that after leaving Bachrach she returned to the Horovitz store about an hour and a half later; that she then saw both Horovitz and Mrs. Kates and told them she had decided to make the purchase on Bachrach's word. Thereupon, in the presence of Mrs. Kates, she wrote out a check for $200 as a deposit, with a pen and a bottle of black or blue ink produced by Mrs. Kates. Also in the presence of Mrs. Kates, she started to write her time on the inside of the skins, approximately around, the waist. Unable to write her name because the penpoint stuck in the skins, she proceeded to print it. The sputtering of the ink caused inkspots. She never used or saw the red tube of Martex which furriers use for such purpose. She selected a lining and was told the garment would be ready in a few days.
On January 22nd she returned to the store, paid the balance of $1,798, and left with the coat. The lining had been sewn and her initials embroidered thereon.
Thereafter, until the end of April, she wore the coat approximately ten times. Then she was confined for several weeks to the hospital. She says Mrs. Kates telephoned her several times for copy of the Bachrach report and also for a testimonial letter.
On May 4th the defendant wrote Horovitz the following letter:
"May 4, 1943
"Dear Mr. Horovitz:
I have enjoyed my beautiful mink coat more and more every time I wore it, — this past winter. One of these days — you will have my letter — I was ill for so long and I am now in the Lenox Hill Hospital recovering from an operation. I plan to be out soon and we will drop by — Please give my kindest regards to Miss Kates. She really is a jewel — so sincere — makes buying a complete pleasure. Our best wishes for your success. I love my coat
"Sincerely,
"Inez C. Weidenmiller".
Defendant avows that before writing the May 4th letter she had noticed that the fur on the cuffs had matted, but she had no occasion to wear the coat again until November, when she noticed more matting and, in addition, that some of the seams in the shoulders had opened, and consequently she grew more suspicious about the coat. She says she went to the Horovitz store during that month, pointed out the defects and was assured it could be fixed. Immediately thereafter, however, she became ill again and when she next wore the coat she once more saw the matted condition, torn seams and the peculiar hang of the coat. Several fur salesmen told her something was wrong.
On April 12, 1944, she took the coat to Bachrach for examination. When Bachrach opened the lining her name appeared printed in red across the lower part of the coat; she told him immediately she had not printed her name in red but with black or blue ink and at a different place. Bachrach's minute examination convinced him that it was not the coat he had seen on January 19th, 1943, at the Horovitz store. His report indicated the following differences;
(a) The coat contained sawdust under the tapes; there was no sawdust in the other coat. (b) The number of skin stripes in the body of the garment totaled 37, plus 5 in the tuxedo, making 42 in all, while the garment which he examined in January, 1943, contained 44 body stripes. (c) The color of the coat was brownish as compared with the dark blue brown color in the other garment. (d) The skins in the first garment were well matched; in this garment they were not. (e) The leather in the garment was tender and could easily be torn by slight manual pressure; such condition was not present in the first garment. (f) The leather in the garment was discolored as though dust and dirt had rubbed against it, while the other garment did not have such discoloration. He admitted on cross-examination that heat and weather could make the feather brittle, but that this leather was not brittle, it was tender. That tenderness could only come from age and the skins in the coat then before him were at least five years old on April 12, 1944.
He further testified that the coat he had seen on January 19, 1943, in the Horovitz store was appraised by him at that time at $2,600 (exclusive of taxes), while the coat he saw in April, 1944 was worth as of January, 1943 about $1,485.
These disclosures animated defendant to consult a lawyer, who wrote Horovitz about the alleged switch, and a little later brought suit in the City Court, demanding the return of her money. The action is still pending. Not content with that suit, defendant wrote the libelous letter which forms the basis of this action.
The foregoing is the substance of defendant's story.
It is a superfluity to announce that the plaintiffs' version is quite different.
The defendant bought a natural eastern ranch mink coat, and she concededly received such a coat. Plaintiffs say that the May 4th letter was wholly unsolicited; that as late as December, 1943, defendant came into the store wearing the coat and expressing satisfaction therewith. The purpose of the visit was not to complain about the coat, but rather to see about buying a fur jacket. Plaintiffs assert that the very first intimation they had of defendant's suspicions was the receipt of the letter from her attorney in April, 1944 — a year and a hall after the purchase. Before that she had said something about the matted condition, and although she was asked to leave the coat with plaintiffs for fixing, she did not do so.
Reverting to the inception of the transaction, plaintiffs say that instead of the defendant first visiting the store on January 16th, 1943, she came in some days before, and Mrs. Kates told her that she did not then have a coat to show her but if she would return in a short while they would try to have one for her. Mrs. Kates told Horovitz of the inquiry, and, as a result, Horovitz, on January 15, obtained a coat on memorandum from Maison Leon priced at $1,400. That plaintiffs did buy a coat from Maison Leon at that time for $1,400 and that this is the coat defendant now has is not seriously contested. The documentary evidence establishes the fact beyond dispute.
Defendant did come in on January 16th, admit the plaintiffs, but they say it was in response to the previous discussion.
Plaintiffs deny that when Bachrach and the defendant were in the store they left together. Bachrach left and the defendant remained. As for the defendant's husband — plaintiffs never saw or heard of him. She decided to buy the coat, plaintiffs say, even before Bachrach had made a chemical test to see whether the hairs in the mink were natural or dyed. Concerning the printing of defendant's name, she did it herself with a red substance use by furriers called "Martex, Dye Resist". The use of pen and ink on the rough skins and ridged leather is practically impossible.
The probabilities are against the defendant. She has the kind of coat she bought. The plaintiffs did procure a coat from Maison Leon around that time. The coat the defendant possesses was, according to Bachrach's testimony, valued at around $1,400. If the plaintiffs intended to cheat the defendant it is unlikely that they would have given her a coat as valuable as that. Certainly, it is difficult to conceive that the plaintiffs would defraud a customer who announced at the very inception of the transaction that she had complained to the District Attorney about another fur coat Moreover, if the plaintiffs wanted to commit the crime of forgery they would not have permitted her to affix her name in black ink on the back of the coat and then switch coats; nor would they have used a red liquid.
Plaintiffs pertinently ask how it is humanly possible for two coats to have been so identically alike in fit, style, color and quality so that after a year's wear she could not tell the difference. Then, too, she never left the coat with plaintiffs for repairs. Again, when she discovered her name in red at a different place she did not complain to the District Attorney as she had done previously. Nor does her lawyer's letter or the libelous letter mention the printed name in red.
In addition to the probabilities, the record reveals the defendant enmeshed in a series of contradictions.
In her bill of particulars in the City Court action she swears that several weeks after she received the coat she had a suspicion that the coat delivered to her was not the same as the coat shown to her on January 19, 1943. On this trial, however, she swore that she had faith in the coat as late as November, 1943, and the letter extolling the beauties of the coat was written May 4th, 1943.
In the libelous letter she states that "experts had made thorough examinations and analysis of this dreadful old coat over a period of many months". Yet no such proof was offered. The libelous letter, furthermore, refers to statements in the letter of May 4th, which the letter does not contain.
In the same bill of particulars defendant declares that she notified the plaintiffs in November, 1943, that the coat was not the same as the one she bought. Yet it appears here that she only complained about the seams and the matting and that she was asked to leave the coat for fixing.
The record discloses other contradictions and inconsistencies in the defendant's case. Admittedly, the acquisition of a mink coat is such an event in the life of a woman of moderate means that the salient circumstances, if not the details, of file transaction, would likely impress themselves on her memory. Yet this defendant's memory regarding some of the circumstances was shown to be faulty. It would extend this opinion inordinately to specify and discuss all the variations and discrepancies, It suffices to say that if the case presented nothing more than the testimony of the parties directly interested, there would be little doubt but that — considering and weighing the foregoing facts and circumstances — the defense of justification has failed.
But the presence in the case of Bachrach tends to create a doubt because his standing and knowledge and the positiveness of his testimony are such as to command respect.
On the trial there was intimation by the plaintiffs that defendant is so obsessed with the notion that she is hiving fur coats switched, as to amount to a phobia. "Lightning", plaintiffs insinuatingly observe, "does not strike twice in the same place, except perhaps in the mind of the person who has been one struck".
But Bachrach cannot be dismissed in that spirit. He had no motive for falsifying. His qualifications are impressive. He has been connected with the fur industry for 38 years, 19 of them as a fur consultant. He holds a fellowship on fur research at Columbia University; has lectured at the Central Needle Trades High School of the Board of Education and at New York University on furs and fur merchandising. He is the author of three books on furs; consultant and expert for the Federal Trade Commission, National Better Business Bureau, the District Attorney, the Department of Markets, Good Housekeeping Institute, and Office of Price Administration.
I have no doubt that Bachrach testified in all sincerity and that he believed he spoke the truth. But I think he was mistaken. Even if his first examination of the coat was not superficial, certainly it was not as minute and thorough as the second. There was more occasion for a more careful analysis the second time. I think both he and the defendant believe that the coat was of a superior quality than it actually was, and that Barchrach, in his second report, strained to support and rationalize his first impressions. The second report contains items which do not appear in the first, i.e., precise color, matching of skins, the presence of sawdust, and the number of body stripes. Plaintiffs' expert testified that some slight particles of sawdust will be found in any new for coat, under the tape. As to stripes, on analysis, the total number in Bachrach's notes and the second report, agree — 77, the only difference in his two reports is that in the first he found two more in the body and two less in the sleeves, and in the second report, one less in (he hotly and two more in the sleeves.
Above all, we have the nigh incontestable fact that the coat which defendant has was well worth the price she paid for it. It may well he that she did not get the bargain she and Bachrach thought she was getting, but she got her money's worth. Very fine mink coats cost far in excess of $2,000.
Two handwriting experts testified, hut (heir evidence is more confusing than helpful. Plaintiffs' expert swore very definitely that the defendant did the printing on the coat, whereas the defendant's expert, with equal positiveness, affirmed that she did not.
[1,2] With this irreconcilable conflict in the testimony, we have this situation: The burden of establishing plaintiffs' case rested on them. But they satisfied that burden when they offered the libelous letter, because plaintiffs are aided by presumption's; certain results are deemed to follow certain acts, and no proof of these results is necessary. Seelman, The Law of Libel and Slander, p. 463, § 530. It is presumed that the libelous letter was false from its nature. Furthermore, malice and injury or damage are presumed — these flow from the defendant's act. Byam v. Collins, 111 N.Y. 143, (50, 19 N.E. 75, 2 L.R.A. 129, 7 Am. St.Rep. 726; Cohalan v. Mew York Press Co. Ltd., 212 N.Y. 344, 106 N.E. 115.
[3 4] Now then to overcome the presumption of falsity (he defendant must prove her defense — that the accusation was true. The burden of proving this is upon her. If she fails to support her defense fry proof, the accusation stands unjustified-false to the end of the case. Seelman, 531, p. 464. And where the defense is not proved, the presumptions of falsity and damage carry with them the right of the plaintiffs to at least nominal damages, although the defendant may have shown her complete freedom from ill will or spite, i.e. actual malice.
Though I believe that when the defendant committed the libel she thought she was right and that she urns not animated by ill-will or actual malice, her good intentions do not constitute a valid defense. Certainly .in acting on Bachrach's report, she cannot be charged with wanton or malicious motives. To be sure, her letter went too far; site hurled accusations and epithets at Horovitz which had no relevancy to the transaction. Some of the innuendos were utterly indefensible. But we must take human frailties into consideration. Outrage is not easily kept within bounds. When one feels that he has been swindled, and is not entirely without some basis for the feeling, he is pretty apt to fly off the handle.
But that the defendant, has not successfully carried the burden of proving the truth of her accusation, appears to me quite clear. Even if the garment did not prove to be commensurate with defendant's hopes and expectations, her disappointment — no matter how poignant — was no justification for the grave accusations.
What then?
Even though the defendant did not plead mitigation, yet under section 338 of the Civil Practice Act she may show any facts which indicate that there was reasonable ground for believing that what she wrote was true. Kehoe v. New York Tribune Co., Inc., 229 App.Div. 220, 241 N.V.S. 676. The section provides: "In an action for libel or slander, the defendant may prove mitigating circumstances, including the sources of his information and the grounds for his belief, notwithstanding that he has pleaded or attempted to prove a justification."
[8, 9] The plaintiffs did not prove actual damages; they rest their claim to damage on the presumption. No one saw the letter except Winifred Zeiger, the typist, who is unknown to the plaintiffs, Ostrowe v. Lee, 137 Misc. 457, 244 N.Y.S. 28; Id., 230 App.Div. 461, 245 N. Y.S. 393; Id., 256 N.Y. 36, 175 N.E. 305. There was no other publication of the letter by the defendant. It was addressed to Horovitz. The defendant is not responsible in damages for the circumstance that Horovitz exhibited it to others. Weidman v. Ketcham, 278 N.Y. 129, 15 N, E.2d 426. The damages must be the natural legal result of live injury complained of; they must be proximate, not remote or contingent. Hicks, v. Foster, 1.1 Barb. 663, 668.
There is no proof that plaintiffs' credit or standing were injured; no special damages are claimed. It does not appear that the libel impaired or otherwise affected plaintiffs' business or reputation.
The plaintiffs urge punitive damages, but such damages are not recoverable here because of the absence of express or actual malice, or malice in fact, or such reckless disregard of the rights of the plaintiffs as equals such ill will.
After weighing all the facts and circumstances, and applying the law, judgment is awarded in favor of the plaintiffs and against the defendants for 6 cents. Settle findings of fact and conclusions of law in accordance herewith.