McDonald v. Press Pub. Co.

55 F. 264, 1893 U.S. App. LEXIS 2552

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 24, 1893
• Status: Published

Opinion

WALLACE, Circuit Judge.

This is a demurrer by the defendant to a complaint in an action for libel. The complaint shows that the defendant printed and published of and concerning the plaintiff, a citizen of the state of Ohio residing at the city of Cincinnati, the following alleged defamatory matter:

“Missing Millionaire McDonald Located.

“Cincinnati, O., Aug. 17. McDonald, southern Ohio manager of the Standard Oil Company until six months ago, when he strangely disappeared, has been located living in luxury at Bellmore, near Windsor, Canada.”

The innuendo is stated as “meaning and intending to accuse the plaintiff of odious and disgraceful conduct, and to bring him into disrepute and disgrace, and meaning and intending that the plaintiff was obliged to secretly run away to Canada, and that he was there found living in luxury on his ill-gotten gains.”

It is insisted by the demurrer that the complaint does not set forth a cause of action, because the publication is not libelous. The construction which is to be put by the court upon a publication which is alleged to be libelous is to be derived as weU from the whole scope and apparent object of the publication as from the expressions used. It is not to be dissected and analyzed to see whether the several parts, standing alone, are innocuous, but is to be read as a whole, in order to ascertain what general impression it is calculated to convey to those who see it. Spencer v. Southwick, 11 Johns. 592; Fidler v. Delavan, 20 Wend. 57; Cooper v. Greeley, 1 Denio, 347; Beardsley v. Tappan, 1 Blatchf. 588. If, when thus read, the language is equivocal, and capable of being understood as conveying an injurious imputation, even though it is also capable of an innocent meaning, it is not for the court, but for a jury, to determine in what sense the language is used.

Applying these rules, the question here is whether a jury would be authorized to find that the publication, in any sense which can be legitimately put upon it, is calculated to injure the reputation of the plain! iff in the common estima Lion of mankind, expose Mm to contumely, or make him contemptible or ridiculous. If it is, it is libelous, although it imputes no crime. Undoubtedly, a man may mysteriously disappear while holding a position of trust and prominence, secrete himself for several months, and then be found living lavishly in a foreign country, who has not offended the civil or criminal laws, or been guilty of any immoral or discreditable: conduct. On the other hand, it Is a matter of common knowledge that those of our coantxymen who expatriate themselves under such circumstances in Canada are frequently fugitives from, justice. So often is this the case that it is not too much to say that the first impression upon reading a paragraph like this would be that the person referred to in it had been guilty of some breach of trust, and joined the colony of American embezzlers and defaulters who have found a haven of refuge, safe under the extradition laws, among our Canadian neighbors. It was said by J)e Grey, C. J., in King v. Horne, Cowp. 672: “A man is not allowed to defame in one sense, and defend himself in another.” Whether a libelous sense or an innocent sense is to be atfrilmted to the present publication must be determined by a jury, under" proper legal instructions. The court, cannot undertake to say, as a matt or of law, in which sense the words are to be understood.

Matters of common knowledge do not require proof,, but the courts take judicial notice of them. If, In the light of such knowledge, the publication is capable of a libelous meaning upon its face, the complaint states a good cause of action, notwithstanding iso extrinsic, facts are set forth explanatory of the language used.

The demurrer is overruled, with costs.