In Lamberti it was alleged that a published account of a joke in which plaintiff had been branded as a member of a band known as the "Black Hand" by his friends, subjected him to the charge that he was in fact a member of that band.Summary of this case from Arno v. Stewart
March 2, 1906.
Franklin Bartlett, for the appellant.
Joseph Pascocello, for the respondent.
To me it seems an absurd supposition that the article justifies the innuendo that it charged membership in the band known as the Black Hand. Any fair-minded man — any man of ordinary ability and intelligence, reading the entire print — could not so construe it. He who runs would read it as the story of a practical joke based on a physical pun — the existence of a "black hand" on the plaintiff's back — and published to provoke laughter.
My reading of the opinion in Morrison v. Smith ( 177 N.Y. 366) and the opinion therein referred to, read by LAUGHLIN, J., in the Appellate Division (Vol. 83, pp. 206, 209), is that the Court of Appeals decided that, although an innuendo must fall, the complaint may survive if no innuendo was necessary to sustain a cause of action. We followed this rule in Wuest v. Brooklyn Citizen ( 102 App. Div. 480), and I shall abide by it.
I think that the article is well within the words of PAXSON, J., in Press Company v. Stewart (119 Penn. St. 584, 603): "The matter has been very much magnified and an importance attached to it which it does not deserve. An actionable libel cannot be created out of nothing." Of course the mere fact that the print was a jest does not put the defendant out of peril. Ridicule may ruin a reputation or a business. On the other hand, although there is more or less contempt in the laughter that ridicule excites (Cent. Dict.), it may be merely "sportive or thoughtless," and so as to be distinguished from derision (Stand. Dict.). The contempt here, if any, would naturally arise from the fact that the plaintiff should have fallen a victim to the catch, when the reader could not have been so ensnared, and such kind of contempt would not mar the plaintiff's reputation or his business. In Triggs v. Sun Printing Pub. Assn. ( 179 N.Y. 144, 155) the court, per MARTIN, J., state the rule: "If, however, they can be regarded as having been published as a jest, then it should be said that however desirable it may be that the readers of and the writers for the public prints shall be amused, it is manifest that neither such readers nor writers should be furnished such amusement at the expense of the reputation or business of another." And the learned judge further says that jest is not justification "unless it is perfectly manifest from the language employed that it could in no respect be regarded as an attack upon the reputation or business of the person to whom it related." It seems to me "perfectly manifest" that the article falls within this exception. As I have said, any fair-minded man would rise from the reading without a thought that the article could be regarded as an attack, actual or covert. He would consider it only as the story of a practical joke that left unimpaired the repute and the affairs of the butt of the pleasantry. It may be that as a result of the publication the plaintiff has received a by-name or a nickname that is not agreeable to him. Such epithets often outrun and outlive their origin. Mr. Odgers, in his Libel and Slander (3d ed. p. 124), says: "The fact that actual damage has followed from the publication is immaterial in considering what is the true construction of the libel," citing Lord COLERIDGE, Ch. J., in Hart v. Wall (2 C.P. Div. 146). Mr. Newell in his work on Slander and Libel, lays down the same rule (2d ed. p. 286). Mere ridicule, not such as is yoked in the various definitions with "hatred, obloquy or contempt," but such as may be sportive and thoughtless, that may beget laughter, that leaves the temporary victim unaffected in his reputation and his business, is not necessarily libelous. The limitation expressed in Triggs v. Sun Printing Pub. Assn. ( supra), and the affirmance of King v. Sun Printing Pub. Assn. ( 84 App. Div. 310; affd., 179 N.Y. 600) thus indicate. While the public press cannot with impunity ruin or affect a man's fair name or his affairs under the guise of joke or jest, on the other hand it need not be debarred from all humor, even of a personal kind that begets laughter and leaves no sting. Otherwise its columns might be almost as dull as the pages of The Gazette, or perhaps the courts become frightened at the volume of actions for defamation, as were the English judges of the 16th and 17th centuries, when in desperation they applied the rule of in mitiori sensu to the verge of absurdity. (Thay. Ev. 288.)
I advise that the interlocutory judgment be reversed, with costs, and the demurrer be sustained, with costs.
HOOKER, RICH and MILLER, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.