Majority
p. 437Rocco Lamberti, Respondent, v. Sun Printing and Publishing Association, Appellant. Second Department, March 2, 1906.
Headnote
Libel—publication wholly facetious cannot be made libelous by innuendo— demurrer to complaint.When a publication; plainly humorous, relating to the plaintiff does not justify an innuendo ascribing to it a libelous "meaning, a demurrer to the complaint will be sustained.
When a publication recounts a practical joke played upon the plaintiff, in which • he was accused by his companions of being branded with a “Black Hand,” . and with being a member of a gang known by that name, such publication cannot be made libelous by an innuendo setting out that such gang was composed of assassins, blackmailers, thieves, etc., and a demurrer to the complaint should be sustained.
p. 438
Appeal by the defendant, the Sun Printing and Publishing Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of May, 1905, upon the decision of the court, rendered after a trial at the,Kings County Special Term, overruling the defendant’s demurrer to the amendéd complaint.
■ The plaintiff sued for libel in the printing of the following article concerning him in the newspaper of the defendant:
“ Black Hand on His Back.
“ Janitor Lamberti Thought it Was a Curse Instead of a Wicked Joke.
“ Boceo Lamberti, janitor.of the civil court at Second avenue and First street, and a protege of Timothy D. Sullivan, was marked with a black hand yesterday, and it was several hours before his friends could restore him’to a normal condition. In Essex street he announced that he would aid his fellow-countrymen in the Italian Chamber of Commerce in running down the Black Hand Kidnappers.
“ ‘ Why, you belong to it yourself,’ said Big Jack Martin, Martin Engel’s manager. £ A man told me he met you in a Turkish bath and saw the. black hand tatooed on your back.’
“ ‘ Liar, thief, villain,’ shouted Boceo.
“ ‘ I will take the man’s word,’ said Martin. £ He swears he saw the mark.’
“1 Here is $20,’ shouted Boceo, ‘ to prove he is a liar.’
“£ Go downstairs in the basement,’ said Martin, £ and if there is not a black hand on your back I will lose the bet.’
“ A committee of the Essex Market Bar Association followed Boceo to the basement. While he was removing his shirt and undershirt Martin blackened his right hand with burned cork.
“ ‘ You scoundrels, show me where there is a black hand on my back,’ said Boceo when he was stripped to the waist.
“ ‘ Bight there,’ said Martin, as he slapped him on the back.
“ The committee agreed with. Martin, but to convince Boceo they had to procure two mirrors. When he saw the imprint on his back he turned pale and shouted: £ There must be a curse on me, a curse on me. I swear that the mark was not there this morning. I
p. 439
denounce them. Bemove it from me, even if you have to cut ,off my flesh.’
“ Boceo refused to be consoled and it required the' services of several of the crowd to restrain him.
“ When he was - finally quieted the black mark was-removed and he was told it was a joke, but the committee which celebrated with his money last night unanimously decided that he lost the,bet.”
He alleged: “ That by the use and force of the said words' thus composed and published by the defendant of and concerning plaintiff herein, it was meant to have it understood and - believed that plaintiff had a £ Black Hand' Tatooed on His .Back,’ which was an emblem or symbol of what is known as the 6 Black Hand ’ or ‘ Black Hand Society,’ which is known as a secret society or association composed of assassins, murderers, blackmailers, thieves and kidnappers, and which members are pledged to secrecy under penalty of death, and who make it their business to threaten, kidnap, blackmail, rob and kill persons for the purpose of blackmail, extortion and robbery, by means of such unlawful threats and acts. And it was further meant to have it understood and believed that plaintiff was tatooed with a ‘Black Hand-’ on his back as a symbol or indication that plaintiff was a member or constituent part of and belonging to said criminal association or society,, and that he is'or was at the time of said publication, when the press in the United States at large, and,in the city of Hew York in particular, was full of articles reporting the commission of numerous murders,- kidnapping, blackmailing and extortion cases, alleged to have been committed by said secret society or the mémbers thereof, a member of the said society or association. And it was further meant to have it understood and believed that plaintiff was pledged to the ‘Black Hand’ or ‘ Black Hand Society ’ and that such a symbol or insignia of the 1 Black Hand’ or ‘ Black Hand Society’ was imbedded into his flesh, and by such insignia or emblem-was known to have pledged secrecy to the ‘ Black Hand Society.’ * * *
“ That the foregoing false,, libelous, malicious and defamatory matter was intended and calculated to and did expose plaintiff to public ridicule, contempt, shame, disgrace, hatred and obloquy, and intended to degrade and did degrade plaintiff, and has injured plaintiff in his good name and reputation, which he had heretofore
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enjoyed, all to his damage in the.sum of Fifteen thousand ($15,000) Dollars. ***.',_
“ That by reason- of the said publication in defendant’s newspaper, plaintiff has suffered and continues to suffer great mental distress, anguish and humiliation, and also received a severe shock to his nervous system. * * *
“ That by reason of the aforesaid publication Or composition of and concerning plaintiff, plaintiff has been and still is called and known as the man with the ‘ Black Haild,’ and the £ Black Hand Kidnapper ’ and the man with the £ Black Hand Tatooed on His Back,’ meaning that this plaintiff is a member of the 1 Black Hand Society,’ which is known as a secret association composed of assassins, murderers, blackmailers, thieves and kidnappers, who make it their business to threaten, blackmail and kill individuals for the purposes of' blackmail, extortion and robbery, all to his great annoyance, humiliation, detriment and disgrace, and has been shunned from society and avoided by his friends and acquaintances.”
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 faii*-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 woi’ds of Paxson, J., in Press Company v. Stewart ( 119 Penn. St. 584 , 603): ££ The matter
p. 441
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 á business. On the other hand, although there is inore 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 tlieir 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. He well in his work on Slander and Libel, lays down the same rule (2d ed, p. 286)., Mere ridicule, not such as isyok,ed in the various definitions with “ hatred, obloquy or contempt,” but such as may be sportive and thoughtless, that may beget laughter, that
p. 442
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 ho sting. . Otherwise its columns might bé • almost as dull ás the pages of The Gazette, or- perhaps, the courts become frightened at the volume of actions for defamation, as were the Eng? lish 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, andr demurrer sustained, with costs. ,
Cases cited
- Morrison v. Smith 177 N. Y. 366 p. 440
- Triggs v. Sun Printing & Publishing Ass'n 179 N. Y. 144 at 155 p. 441
- In re Lowman 179 N. Y. 600 p. 442