Owen v. J. S. Ogilvie Publishing Co.

32 A.D. 465, 53 N.Y.S. 1033, 6 N.Y. Ann. Cas. 76, 1898 N.Y. App. Div. LEXIS 1782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Hatch, J.:

Action to recover damages for an alleged libel claimed to have been published by the defendant,, a corporation. The act complained of was committed by the defendant’s general manager. The libel consisted in the dictation.of a letter by the defendant’s general manager to a young lady employed by the corporation as, a stenographer and typewriter in the private office of the general manager. The letter was written in reference to the business of the corporation,, and had relation to a small sum of money missing from the cash drawer, and the letter expressed a suspicion that the money had been taken by the plaintiff, during her employment by the defendant, on the day before. The law is elementary that there can be no libel without a publication of the libelous matter. We may assume that this letter was libelous. Was there a publication of it by the corporation', within the meaning of the law? Ordinarily, when a letter is written and delivered to a third person, with the intent and expectation that it. shall be read by such person, and it is .actually read, the publication is complete. (Youmans v. Smith, 153 N. Y. 214.) Has .such rule application to the facts of this case? 'The letter was dictated to the stenographer, and was by her copied .-out, was signed by the manager, was then inclosed.in an envelope, .and sent by mail to the address of the plaintiff. It may be that the dictation to the stenographer and her reading of the letter would constitute a publication of the same by the person dictating it, if the relation existing between the manager and the copyist was that of master and servant, and the letter be held not to be privileged. Such, however, was not the relation of these persons; they were both employed by a common master, and were engaged in the performance of duties which their respective employments required. Under such circumstances we do not think that the stenographer is to be regarded as a third person in the sense that either the dictation or the subsequent reading can be regarded as a publication by the corporation. It was a part of the manager’s duty to write letters for the corporation, and it was the duty of the stenographer- to take such letter in shorthand, copy it out and read it for the purpose of correction. The "manager could not write and publish a liDel alone, and we think he could not charge the corporation with the consequences of this act, where the corporation, in the ordinary conduct of its business, required the action of the manager and the" stenographer in the usual course of conducting its correspondence. The act of both was joint, for the corporation cannot be said to have completed the act which it required by the single act of the manager, as the act of both servants was necessary to make the thing complete. The writing and the copying were but parts of one act, i. e., the production of the letter. Under such conditions^ we think the dictation, copying and mailing are to be treated as only one act of the corporation ; and as the two servants were required to participate in it, there was no publication of the letter, in the sense in which that term is understood, by delivering to and reading by a third person. There was in fact but one act by the corporation, and those engaged in the performance of it are not to be regarded as third parties, but as common servants engaged in the act.

We do not deny but that there can be publication of a libel by a) corporation by reading the libelous matter to a servant of such cory poration, or delivering it to be read. Where the duties devolved-upon such servant are distinct, and independent of the process by . which the libel was produced, he might well stand in the attitude of a third person through which a libel can be published. But such rule may not be applied where the acts of the servants are so intimately related to each other as is disclosed in the present recordl and the production is the joint act of both. As there was no other’ proof of publication aside from the reading by the stenographer,, it is insufficient to uphold a finding that the libel was published. Nothing in Kiene v. Ruff (1 Iowa, 482) conflicts with this view. That case presented the ordinary question of delivery, by the, person writing the libel, of the libelous matter to a third person to transcribe the same. The delivery for that purpose was hel Jsufficient to constitute a publication, where such person actually transcribed the matter and forwarded the letter. Substantially similar doctrine is contained in Snyder v. Andrews (6 Barb. 43). Such.rule is not questioned, but the particular facts of this case remove it from its operation.

It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Woodward, J., absent.

Judgment and order reversed and new trial granted, costs to abide the event: .