Hartmann v. Winchell

73 N.E.2d 30, 296 N.Y. 296

• Court: New York Court of Appeals
• Decided: April 17, 1947
• Status: Published

Opinions

Thacher, J.

The,motion to dismiss the amended complaint, pursuant to rule 106 of the Rules of Civil Practice, was denied, and this determination has been affirmed on appeal to the Appellate Division with leave to appeal to this court upon the following certified questions:

“ 1 — Does the utterance of defamatory remarks, read from a script into a radio microphone and broadcast, constitute publication of libel?

“ 2 — Does the further amended complaint state facts sufficient to constitute a cause of action? ”

The words of the broadcast were defamatory and were spoken of and concerning the plaintiff; they did not, however, defame, him in his professional character and were not slanderous per se (Kleeberg v. Sipser, 265 N. Y. 87, 91; Moore v. Francis, 121 N. Y. 199, 203; Kober v. Lyle, 173 App. Div. 655; Armstrong v. Sun Printing & Pub. Assn., 137 App. Div. 828, 831-832). Nor is the general allegation that plaintiff “ suffered a loss of earnings upwards of seven thousand ($7,000) dollars ” sufficiently specific to constitute an allegation of special damage — indispensible if reading from the script was not libel (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377, 390; King v. Sun Printing & Pub. Assn., 84 App. Div. 310, affd. 179 N. Y. 600). If it was libel, both questions .must be answered in the affirmative; if not, both must be answered in the negative.

In Snyder v. Andrews (6 Barb. 43 [1849]), it was held that reading a defamatory letter in the presence of a stranger was a sufficient publication to sustain an action for libel (citing De Libellis Famosis, 5 Co. Rep. 125a [1605]; John Lamb’s Case, 9 Co. Rep. 59b [1610]). These decisions in Coke’s Reports were cited in Forrester v. Tyrrell (9 Times L. R. 257 [1893]), where the defendant, in the presence of others, read out an anonymous letter defaming the plaintiff, and Lord Esheb, in announcing the unanimous decision of the Court of Appeal, said: “In ‘ Anon ’ (5 Rep., 125a) and ‘ John Lamb’s Case ’ (9 Rep., 60) it was laid down that if a man read a libel on another to himself and then read it out that made him a libeller. It would be strange if it were not so. What was so laid down has been treated as clear law by books of authority ever since, and it showed that the publication here made the defendant a libeller of the plaintiff.” There are dicta to the contrary in Osborn v. Thomas Boulter & Son ([1930] 2 K. B. 226) but that decision went upon a question of privilege, which perhaps explains the fact that Forrester v. Tyrrell (supra) was not mentioned in the opinions of the judges or in the briefs of counsel as summarized by the reporter. By the great weight of authority in other States this rule coming down from Coke’s time and declared in Forrester v. Tyrell (supra) is the law today (M’Coombs v. Tuttle, 5 Blackf. [Ind.] 431; Bander v. Metropolitan Life Ins. Co., 313 Mass. 337; Peterson v. Western Union Telegraph Co., 72 Minn. 41; Ohio Public Service Co. v. Myers, 54 Ohio App. 40; Adams v. Lawson, 17 Grat. [Va.] 250).

We accept Snyder v. Andrews (supra) as a correct statement of the rule which still prevails in this State but it is said that this rule can have no application to radio broadcasting because the persons who hear the broadcast do not know that the spoken words are being read from a writing. This distinction was discussed in Meldrum v. Australian Broadcasting Co., Ltd. ([1932] Vict. L. B. 425) where broadcasting from a written script was held by the Supreme Court of Victoria to be a slander and not a libel. Cussen, Acting Chief Justice, rejected Forrester v. Tyrell (supra) upon this distinction. Upon appeal to the full court the judgment was affirmed, one of the judges holding the distinction quite immaterial, another repudiating the cases in Coke’s Reports cited in Forrester v. Tyrrell (supra) and the third expressing the view that the publication of a libel must convey to the mind of the person to whom it is published the permanent form in which it is expressed and recorded, citing, by analogy, defamation by statue, effigy or picture which may not be published by oral description. Defamatory words read from a script are published precisely as written. Mere description is in no sense a reproduction of pictorial defamation, which no doubt may be published by copy or photograph; but with that we are not concerned in this case.

Unless in the case of broadcasting we are prepared to do what Mansfield, Ch. J., in 1812 declared he could not do in Thorley v. Kerry (4 Taunt. 355, 364-365) namely, abolish the distinction between oral and written defamation, we must hold to the reason for the distinction so well expressed in a single phrase in Ostrowe v. Lee (256 N. Y. 36, 39): “ What gives the sting to the writing is its permanence of form;” This is true whether or not the writing is seen. Visibility of the writing is without significance and we hold that the defendant’s defamatory utterance was libel, not slander. We do not reach "the question, which has been much discussed, whether broadcasting defamatory matter which has not been reduced to writing should be held to be libellous because of the potentially harmful and widespread effects of such defamation. (See Restatement, Torts, § 568, subds. [1], [3], comments e, f, g.)

The order should be affirmed, with costs, and each certified question answered in the affirmative.