noting that publishing the same statement in two different newspapers constituted two "distinct publication" because "[p]ersons would read or acquire knowledge of [the statement] from or through either paper who would not do so through the other"Summary of this case from Clark v. Viacom Int'l Inc.
Argued April 27, 1915
Decided May 25, 1915
Herman J. Westwood and Louis G. Monroe for appellant. Edward J. Garona and Robert F. Schelling for respondent.
The action is to recover damages for an alleged libel. The facts present a single question for us to determine. The defendant owned and published at the city of Buffalo, in the same building and, speaking comprehensively, with the same plant and operators, except as to editorial staffs, two newspapers, the one, the Buffalo Enquirer, issued in the afternoon, and the other, the Buffalo Courier, issued in the morning of each day. The alleged libel was published in substance and effect, though not in identical language, in the Buffalo Enquirer on August 27, 1910, and in the Buffalo Courier the next morning. The plaintiff brought two actions against the defendant, that is, a separate action for each publication, and has recovered and been paid a judgment in the action based upon the publication in the Buffalo Enquirer. The present action was based upon the publication in the Buffalo Courier, and the trial court held that the judgment in the former action was a bar to a recovery by the plaintiff in this action and directed a verdict in favor of the defendant. The Appellate Division, by an unanimous decision, affirmed the judgment of the trial court and gave leave to the plaintiff to appeal to this court. The judgment must be reversed.
The courts below held that the two actions involved the same issues and applied the principle that a judgment is final and conclusive upon the parties, not only as to the issues actually determined, but as to every other question which the parties might or ought to have litigated. ( Stokes v. Foote, 172 N.Y. 327, 344.)
The principle, however, is applicable to those issues only which exist in or pertain to the cause or causes of action contained in the complaint and the defenses, answers or counterclaims thereto. It does not require that all the causes of action which a plaintiff may allege against a defendant, and which may be, must be set forth in a single complaint and litigated in one trial. A judgment is not a bar or estoppel in a subsequent litigation between the same parties of a cause of action which might have been pleaded and determined by it, but was not, although it may be a conclusive adjudication as to questions or facts which were actually litigated and determined. ( Perry v. Dickerson, 85 N.Y. 345; Bell v. Merrifield, 109 N.Y. 202; Dawley v. Brown, 79 N.Y. 390; Secor v. Sturgis, 16 N.Y. 548; Southern Pac. R.R. Co. v. United States, 168 U.S. 1, 48; Nesbit v. Riverside Independent District, 144 U.S. 610, 618.) The respondent asserting and arguing that the two publications were a single act and a single injury invokes, in addition, the cognate rule that where an action is brought for a part only of an entire demand, the verdict and judgment in such action are a conclusive bar to a subsequent action for another part of the same demand — a rule which applies only to such demands as are single, entire and indivisible. ( Kennedy v. City of New York, 196 N.Y. 19; O'Dougherty v. Remington Paper Co., 81 N.Y. 496; Secor v. Sturgis, 16 N.Y. 548.)
The defendant communicated to others than the plaintiff the alleged libel on two independent occasions by means of two separate writings or newspapers. Persons would read or acquire knowledge of it from or through either paper who would not do so through the other. Each communication was a distinct publication which constituted, if the matter was libelous, a complete libel and a cause of action in favor of plaintiff. ( Underwood v. Smith, 93 Tenn. 687; Gordon v. Journal Publishing Co., 81 Vt. 237; Woods v. Pangburn, 75 N.Y. 495; Fisher v. New Yorker Staats-Zeitung, 114 App. Div. 824; Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865; Reid, Murdoch Co. v. Ferris, 112 Mich. 693; Hughes v. Rees, 4 M. W. 204.) The recovery by the plaintiff of the damages suffered by her through the publication in the Buffalo Enquirer does not compensate her for such damages, if any, as resulted from the publication in the Buffalo Courier. The evidence which proved the publication, the publishers and the damages to the plaintiff in the former action will not establish the like facts in this. The reasoning in Underwood v. Smith ( 93 Tenn. 687) is accurate and satisfactory. It is there said: "Every separate and distinct publication of a libel is a distinct offense, for which a separate action will lie, and a recovery of damages for the first publication of the libel is no bar to an action based upon its repetition or republication. * * * The rule which requires a party not to split his cause of action, and prosecute it by piecemeal, does not require that distinct causes of action, each of which would authorize independent relief, should be presented in a single suit. And this is true, even though the several causes of action may exist at the same time. * * * The doctrine of res adjudicata is based upon reasons and principles which have no application to the case at bar. In order to sustain the plea the causes of action must be the same, between the same parties, based upon the same evidence, and resulting in damages based on the same reasons. * * * While it is true that one recovery in an action for libel is a bar to a second recovery for the same cause of action, as in all other suits, still it is no bar when there is a separate and distinct cause or ground of action for a repetition of the libel, which is a similar but not the same offense, any more than a judgment for one assault and battery would bar an action for a second assault and battery by the same person on the same party." It will, of course, be understood that the reasoning is not applicable to different defamatory statements in one publication. ( Macdougall v. Knight L.R. [25 Q.B. Div.] 1.)
In Frazier v. McCloskey ( 60 N.Y. 337); Distin v. Rose ( 69 N.Y. 122); Daly v. Byrne ( 77 N.Y. 182); Enos v. Enos ( 135 N.Y. 609) we were considering the vexing, variously answered and perhaps unsettled questions (See 1 Wigmore on Evidence, §§ 403-406; 5 id. § 406) as to the admissibility, under the facts of those cases, of repetitions of libels or slanders, as bearing upon the degree of malice which actuated the defendants in those cases. Inasmuch as neither the present record, nor the briefs or arguments of counsel present those questions for decision, we do not discuss them.
The judgment should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, CUDDEBACK, CARDOZO and SEABURY, JJ., concur; HOGAN, J., concurs in result; WILLARD BARTLETT, Ch. J., absent.
Judgment reversed, etc.