FRITS V. HOLM, Appellant,
'JOHN' P. HOLM, First Name 'John' Being Fictitious, etc., and EMIL OPFFER, Respondents.
APPEAL by the plaintiff, Frits V. Holm, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1911, sustaining the defendants' demurrer to the amended complaint in an action for libel upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
Benjamin Marcus of counsel [Cowan, Ketchum & Marcus, attorneys], for the appellant.
Raymond Ballantine of counsel [T. Langland Thompson with him on the brief], for the respondents.
The complaint, after alleging the plaintiff's ancestry, education, societies and associates, avers that 'Plaintiff is and at all times hereinafter mentioned was a noted tourist, newspaper correspondent, traveller, writer and lecturer of recognized ability. * * * That early in 1907, the plaintiff as the result of his worldwide travels and extensive study, particularly while in the far east, learned of the existence of a monolithic tablet or monument containing valuable religious data and inscriptions and claimed to have been the work of the Nestorian Monks in the Eighth Century, A. D., and he thereupon set out upon a perilous and costly expedition to the interior of China to procure the aforesaid monument for the benefit of science in the western world. That the opposition of the Chinese government prevented the removal thereof, but that after many hardships, plaintiff succeeded in obtaining a replica of
the said tablet, which was afterwards brought to the United States sometime in June, 1908, and since that time has been on exhibition in the Metropolitan Museum of Art in the City of New York; that prior to the installation of the said replica in the Museum of Art, as aforesaid, the same was the subject of rigid investigation by scientific authorities, and its value having been established, it thereafter became the subject of worldwide discussion among theologians, scientists and students of archaeology and pronounced an important and valuable acquisition to science, and the plaintiff was recipient throughout this and other countries, and in the press of the entire world, of commendation and honors from scientists and scientific institutions and the subject of highly laudatory and distinguished comment of himself and his achievement on the part of the press in general, and among the papers that published such complimentary accounts of plaintiff prior to the libelous article hereinafter mentioned and set forth, was the 'Danish American,' the newspaper owned by the defendant Holm. That in the latter part of 1909 plaintiff published a book under the title of 'The Nestorian Monument,' containing an official scientific account, description and record of the expedition, as well as a translation of the inscription on said tablet. * * * The defendants herein well knowing the aforementioned facts, * * * wickedly and maliciously, contriving and intending to injure this plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace, and to hold him up as an object of hatred, ridicule, contempt and obloquy * * * falsely, wickedly and maliciously printed * * * the following false, improper, scandalous, malicious and defamatory article of and concerning the plaintiff: * * *
'Mr. Editor, the well-known and witty Arne Jensen, son of ex-pastor Jensen, has written in 'Ekstrabladet' about the Nestorian Stone, now being exhibited at the Metropolitan Museum, and the expedition under the leadership of Frits W. Holm (who through a misprint is named Anders W. Holm). Arne's article is very facetious and I request you to reprint it. Vald Blad.'
'The article follows:
'In an issue of the Illustreret Tidende, which perchance has fallen into my hands, I read an account of Frits W. Holm's (meaning the plaintiff) Danish Nestorian Expedition to China, one of the most peculiar and idiotic expeditions ever fitted out under the Danish Flag. Besides Mr. Holm (meaning the plaintiff), the expedition numbered the following, Carpenter Carl Christian Helms, laborer, Andresen's wife, Ann Christine, Painter Albinus Nielsen, Pensioned Shipbuilder, Johan Jacob Davidson, Ex-House owner Trorod Jens Bonne, Widow Johanne Hansen, Pensioned Street Railroad Conductor Hans Hansen and Milkman Anders, Joergensen's wife Nielsine (meaning thereby to reflect discredit and ridicule upon plaintiff's expedition by associating him with ignorant and illiterate people and to disparage the expedition by intimating that women were a part thereof). With these individuals, Frits W. Holm (meaning the plaintiff) went to the interior of China in order to search for Nestor's Tomb and save it from oblivion (meaning thereby to disgrace and ridicule the expedition by intimating that the search was for the tomb of a mythical hero and to travesty the real object of the search, the tablet erected by the Nestorian Monks). This was a beautiful thought on Holm's part (meaning the plaintiff) and in case he cultivated a similar interest in the graves of his own family, many churchyards in this country would look more attractive (meaning and intending thereby to reflect discredit upon the plaintiff because of irreverence for his ancestors) and I should not have said a word about his Nestorian Expedition, but the truth of the matter is that Holm (meaning the plaintiff) had no business at Nestor's Tomb. In the first place Nestor's family is fully aware of the burial place of the old fellow, and there was, therefore, no reason to equip a large expedition in order to find the grave (meaning thereby to ridicule and discredit the expedition by characterizing it as a search for the grave of a man named Nestor), secondly, the grave is to this day kept in order by the family. Nestor died in 1808, as 'Konsistorialraad,' and Knight of the Dannebrog, and the tomb of such a prominent man is not given over to oblivion, even if it is situated a few miles in the interior of China. Holm, however (meaning the plaintiff), had got the idea that the descendants of Nestor were a bad
lot, entirely without spirit of veneration, and that the tomb was in a sadly neglected state, if it still existed (meaning thereby to ridicule the expedition, and Holm's scientific knowledge of his quest, by continuing to intimate that it was the search for a grave). Without a word to the local Nestorians (meaning and intending to ridicule and discredit the plaintiff and his expedition by intimating underhanded and improper conduct and burlesquing the expedition) about his intention, he started his expedition hoping to acquire immortal fame as the discoverer and rebuilder of the tomb of the late 'Konsistorialraad.' What the Chinese thought when Holm (meaning the plaintiff) landed at the Custom House in Shanghai with his mixed party of gentlemen and ladies (meaning thereby that the party was one calculated to create suspicion) the report of Holm (meaning the plaintiff) has nothing to say about. He (meaning the plaintiff) merely mentions that he went into the interior, where he had a great deal of adversity, and where he lost some of his people, whom he is likely to get back in eight months' time when their term of penal servitude is over (meaning and intending thereby to reflect discredit, disgrace and ridicule upon the plaintiff, his expedition and assistants by attributing to them criminal offenses). Finally he (meaning the plaintiff) was standing at Nestor's Tomb (meaning and intending to ridicule the plaintiff) in the graveyard. He (the plaintiff) permitted himself to be photographed, together with the tombstone, the picture is reproduced in the 'Illustrat Tidende,' then he caused the crew to take up the stone, and when he had once more been photographed, together with the hole (meaning and intending to ridicule plaintiff by intimating that he stood in the depression left by the removed stone) in which the stone had been standing, he had it sent ...