ROBERT J. COLLIER, Respondent,
POSTUM CEREAL COMPANY, LIMITED, Appellant.
MOTION for a reargument of an appeal by the defendant, the Postum Cereal Company, Limited, or, in the alternative, to certify questions to the Court of Appeals. (See 149 A.D. 143.)
Morgan J. O'Brien [James W. Osborne and Edwin W. Willcox with him on the brief], for the motion.
James A. O'Gorman [Arthur B. Williams and Stephen P. Anderton with him on the brief], opposed.
The dissenting opinion [a1] shows that none of the reasons urged in support of the judgment or now urged in support of the motion for reargument escaped the attention of the court, and manifestly in the present state of this case it would be improper to certify questions to the Court of Appeals. It appears, however, that the writer of the prevailing opinion sacrificed clarity to brevity. At any rate, counsel seem not to understand what the court decided and request us to clear up the point and to state our views on the questions discussed in the dissenting opinion.
The precise and only point decided was, that it was pre-judicial error to allow the plaintiff to make a general attack
upon the food products and business methods of the defendant, and whatever else may have been said in the opinion was intended only to show the harmful character of the evidence erroneously admitted. We construe the provoking article as making the two specific charges which we quoted. What was said in introduction about deception in advertising, in so far as it related to the defendant, was limited by said specific charges; and the concluding part of the article, so far from making these charges broader, really limited them by pointing out that, by the style of advertising thus specifically described, the defendant was causing its food products, which should sell on their merits, to be classed in the public mind with patent medicines and thereby was alienating patronage that it might otherwise receive. We construe the replying article, the alleged libel, as characterizing the specific charges quoted by it, as 'rank out-and-out falsehoods,' 'mendacious falsehoods,' and as charging, in so far as it related to the plaintiff individually, that the provoking article was published because the defendant would not advertise in Collier's Weekly at its own prices and upon its own conditions and for the purpose of forcing money from the defendant by compelling it to advertise. The plaintiff was not defending a suit for libel, and it was not for him to justify a general charge of dishonesty even if he had made one against the defendant. He could prove the falsity of the defendant's charge by proving the truth of what the defendant charged to be false, but his evidence on that head should have been limited to the said specific charges. Whilst the defendant averred in its answer by way of innuendo that the plaintiff charged it with being 'dishonest in its business methods' and 'guilty of deceit and lying in its business and in advertising and selling its said products, etc.,' that averment construed with reference to the quotation to which it referred meant that the defendant was charged with dishonesty, lying and deceit in the particular respects referred to. Certainly no one would contend that it justified proof, e. g., that the defendant used false weights or had defrauded its creditors; and a mass of the evidence improperly received was just as irrelevant to the specific charges.
Counsel do not specify the points upon which they desire an
expression of the views of the court. There were perhaps four questions not touched upon in the prevailing opinion, which, if necessary to the decision or likely to arise upon a new trial, merited discussion, viz.: (1) The question of privilege; (2) the question as to the alleged error in refusing to charge that the plaintiff could not recover damages for any injuries to Collier's Weekly; (3) the question whether there was really any defendant in court; (4) the question as to the alleged error in the admission of evidence of forty-four separate publications in the State of New York.
1. We did not pass upon the first question for the reason that the plaintiff tried the case on the theory that the alleged publication was presumptively privileged, and argued in the brief submitted to this court that the facts upon which the claim of privilege rested, being in dispute, the question was for the jury. However, on a new trial the plaintiff may take the view expressed in the dissenting opinion, and if we are to undertake the task of outlining our views on the questions in the case before they arise we may as well do it thoroughly. I shall discuss the question under the fourth head, with which it is related.
2. We did not discuss the second question for the reason that counsel defended the refusal to charge on the ground that the request was not germane to any issue in the case, because the plaintiff had not undertaken to recover damages for injury to his interest in Collier's Weekly. But, inasmuch as we do not agree with the view expressed in the dissenting opinion, that the plaintiff is entitled to recover in this suit damages for such injuries, a brief statement of our views may save a repetition of the error on a new trial. The cases cited (Tobin v. Best Company,120 A.D. 387; Rosenwald v. Hammerstein, 12 Daly, 377; Constitution Publishing Company v. Way,94 Ga. 120; Willis v. Jones, 13 App. Cas. [ D. C.] 482) do hold that where a defamatory article libels both a copartnership and its members individually--in other words, when it is libelous per se--the individuals ...