Opinion
December 31, 1914.
John E. Donnelly [ Alfred J. Amend with him on the brief], for the appellant.
Rudolph Marks, for the respondent.
All facts alleged, which are material to a discussion of the appeal, are stated in the statement of facts.
The first point to be decided is whether there is a sufficient allegation of special damages, for, if so, all counts of the complaint are good, and the demurrer was properly overruled. There is no allegation with respect to the amount that plaintiff was offered for the English rights for the production of the play, or with respect to the damages sustained by the withdrawal thereof. There is no allegation that any particular patron or patrons of the theatre, who otherwise would have attended, remained away on account of the publication; nor is there any allegation of any particular loss of box-office receipts on account of any of the publications. The allegations with respect to the withdrawal of the offer for the English rights and instigating a boycott against the plaintiff's theatre, are the only ones which it is or could be claimed constitute allegations of special damage. The general rule applicable to actions for libel and slander is, that if special damages are claimed they must be expressly alleged, and with such particularity as to enable defendant to meet the charge, and in this respect such actions are unlike those in which the defendant's remedy is for a bill of particulars if the damages are not alleged with sufficient definiteness. ( Reporters' Assn. v. Sun Printing Pub. Assn., 186 N.Y. 437.) I am, therefore, of opinion that such special damages are not alleged, and that the sufficiency of each cause of action depends upon whether the article therein quoted was published of and concerning the plaintiff and was libelous per se with respect to the plaintiff.
It is to be borne in mind that the articles were all published in German. They are alleged in the complaint as published in the German language, and this is followed by the English translation thereof, with the innuendoes in brackets. Each of the articles relates to the production of this play at the plaintiff's theatre; but neither the corporate name of the plaintiff nor that of the theatre is given, and it is charged that the production was given by Adolf Philipp at the Philipp Theatre, or the Fifty-seventh Street Theatre. The plaintiff claims that each of the articles libeled it in its business. The defendant claims that it is not shown and cannot be made to appear by innuendo that the articles were in any respect published of or concerning the plaintiff, for the reason that they relate principally to the authorship of the play and to Philipp individually as an actor, playwright and theatrical manager. I am of opinion that there is no force in this contention. We are not now concerned with those parts of the articles relating to Philipp individually or with the motive of the author of the play; but in so far as they reflect upon the management of the theatre, and the character of the play it was producing, and the motive underlying its production by the plaintiff, they are sufficiently shown to have been published of and concerning the plaintiff by the mere allegation that the plaintiff is the lessee of the theatre and producing the play thereat, and no innuendoes were necessary and, being superfluous, they are harmless. ( Soper v. Associated Press, 115 App. Div. 815; affd., 188 N.Y. 550; Nunnally v. New-Yorker Staats-Zeitung, 111 App. Div. 482; Weston v. Commercial Advertiser Assn., 184 N.Y. 479. See, also, Parker v. Bennett, 68 App. Div. 148.)
If the articles merely constitute a libel or slander on the theatre or the play, as distinguished from the plaintiff and its business and the nature and management thereof, then they would fall within the rule that an action for libeling a "place or thing" will not lie without allegation and proof of special damages. (See Marlin Fire Arms Co. v. Shields, 171 N.Y. 384, 390; Maglio v. New York Herald Co., 83 App. Div. 44; 93 id. 546; Kennedy v. Press Pub. Co., 41 Hun, 422; Le Massena v. Storm, 62 App. Div. 150; Bosi v. New York Herald Co., 33 Misc. Rep. 622; affd., 58 App. Div. 619; Felt v. Germania Life Ins. Co., 149 id. 14.) I am of opinion that the articles relate to the theatrical business conducted by the plaintiff and to the plaintiff's production of the play "Zabern," and, therefore, they relate to the plaintiff's business. It is now well settled that an article may be libelous per se against a corporation. There is, however, a marked difference between an action by an individual for libel and one by a corporation, inasmuch as the basis of an action by an individual is usually the injury to his private character and reputation, whereas those elements are necessarily eliminated in an action by a corporation, which can only be damaged by an attack upon its business methods of a nature calculated and tending to injuriously affect it pecuniarily in its business reputation and credit; but when it may fairly be inferred from a malicious and false publication that it will injuriously affect the corporation in its business and credit, then the article is libelous per se and damages are presumed. ( Reporters' Assn. v. Sun Printing Pub. Assn., 186 N.Y. 437; Arrow Steamship Co. v. Bennett, 73 Hun, 81; Town Topics Pub. Co. v. Collier, 114 App. Div. 191; Kemble Mills v. Kaighn, 131 id. 63; Mutual Reserve Fund Life Assn. v. Spectator Co., 50 N.Y. Super. Ct. [18 J. S.] 460; Union Associated Press v. Health, 49 App. Div. 247; New York Bureau of Information v. Ridgway-Thayer Co., dissenting opinion of INGRAHAM, J., 119 id. 339, on which the judgment was reversed, 193 N.Y. 666. See, also, Moore v. Francis, 121 N.Y. 199; Davey v. Davey, 22 Misc. Rep. 668.) The demurrer admits the facts alleged, including the application of the words published as charged in the innuendoes, in so far as they are susceptible of the meaning ascribed to them by the innuendoes; but an innuendo can neither extend nor enlarge the publication, and where the article is not libelous on its face with appropriate innuendoes showing its application, and becomes so only by reference to extrinsic facts, such facts must be alleged in traversable form, for they relate to the substance and not to the application of the charge, and if the article be libelous per se or may be on the facts as found by the jury, it is immaterial whether or not it is susceptible of another meaning ascribed in the innuendo. ( Van Heusen v. Argenteau, 194 N.Y. 309; Parker v. Bennett, supra; Morrison v. Smith, 177 N.Y. 366; Fleischmann v. Bennett, 87 id. 231; Hoey v. N Y Times Co., 138 App. Div. 149.)
The press is accorded, for the public interests, a qualified privilege to discuss and criticise the management of and productions at a theatre to which the public are invited, and this privilege in the absence of actual malice extends even to ridicule and is without limitation; but since it is accorded for the benefit of the public only and the guidance of public opinion and taste, when the discussion or criticism exceeds the bounds of fair and honest criticism, and becomes an intemperate, aspersive attack upon the motive of the management of the theatre, or the character of the production thereat, an evil and malicious motive for the publication may be inferred; and if found to exist, the publication is not protected by the qualified privilege, but may, of course, be justified by absence of malice or by pleading and proving that it was true. ( Triggs v. Sun Printing Pub. Assn., 179 N.Y. 144; Hamilton v. Eno, 81 id. 116; Hoey v. N.Y. Times Co., supra. See, also, Klinck v. Colby, 46 N.Y. 427; Ashcroft v. Hammond, 197 id. 488; Laughton v. Bishop of Sodor and Man, L.R. [1871-1873] 4 P.C. 495, 505.)
It only remains to apply these general principles to the alleged libelous articles and to decide whether, in the light thereof, they are libelous per se. I do not deem it necessary, and it would unduly lengthen this opinion, to separately analyze and discuss the different articles. It is evident to me, on reading them in the light of these rules of law, that some of them do not exceed the bounds of fair and honest criticism, and do not necessarily tend to injure the plaintiff in its business and credit, and although the line of demarcation is not so well defined that the task is easy, I am of opinion that the alleged libelous articles set forth in the first, second and ninth counts fall in this category. On the other hand, it is quite clear that the articles which are the bases of the other causes of action alleged are not protected by the qualified privilege, for they are not confined to criticism of the play and to informing the public with respect to the nature thereof, or of defendant's views concerning it, but constitute aspersive attacks in violent and intemperate language upon the plaintiff's business and upon its motive in producing the play by what are conceded by the demurrer to be false charges with respect to the character of the play that are calculated and expressly stated to be intended to induce the German-speaking public to refrain from patronizing the theatre, and thereby to inflict damages upon the plaintiff.
It follows, therefore, that the order, in so far as it overrules the demurrer to the first, second and ninth causes of action should be reversed, with ten dollars costs and disbursements, and in all other respects affirmed, without costs, but with leave to defendant to withdraw its demurrer to the other causes of action and to answer.
INGRAHAM, P.J., and HOTCHKISS, J., concurred; DOWLING and SCOTT, JJ., dissented, and voted to sustain the demurrers to all the causes of action.
Where the proprietor of a theatre, for the sake of profit, deliberately places upon the stage a production which is bound to arouse controversy by the nature of its subject, or the manner of its treatment, and particularly where he offers for popular patronage a play which is offensive to the racial or religious sentiments of such public, or any considerable portion thereof, he must accept not only criticism of his offering but of his motives in voluntarily challenging the open hostility of the community at large, or of such section of it as he has chosen to attack. Instances are not wanting where such attack has been deliberately made with the hope of consequent profit from the section of the community holding different views from the one attacked. In so far as the articles complained of referred to the business conducted by the plaintiff, they were criticisms directed against an enterprise which, while posing as a German theatre, and appealing for support solely to the German element in New York city, for reasons of its own chose to present a play which was repugnant to the ideas of Germans who still entertained an affection for the country of their birth. The feeling of hostility which might reasonably be supposed to be aroused by such a course of conduct was aggravated by the presentation of this play, having to do with the German military system, at a time when Germany's relations with at least one other nation referred to were strained. For the proprietors of a German theatre to present a play involving issues vital to Germany and lying at the very root of the controversial issues then being vigorously debated, it seems to me was an open invitation to a discussion by Germans of its methods and motives which was bound to be severe and perhaps could not escape being abusive. So far as the English translation of these articles discloses, they contain such criticism as might be expected to be called for in response to the plaintiff's production of the play, and having in view all the conditions under which the play was produced and the articles published, I do not think that they are libelous, or that they go further than might naturally be expected under such circumstances. There being no appropriate allegation of special damage, and the articles in my opinion not being libelous per se, I believe the demurrers to all the causes of action should have been sustained.
SCOTT, J., concurred.
Order reversed to the extent stated in opinion, with ten dollars costs and disbursements to appellant, and in other respects affirmed, without costs, with leave to defendant to withdraw demurrer and to answer as indicated in opinion. Order to be settled on notice.