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MacDonald v. Sun Printing & Publishing Ass'n

111 A.D. 465 Court Second Department, Decision date 1906-03-16 Docket No. 2 English

Delivered by Jenks, J.:

Contents

Majority

p. 465
Arthur MacDonald, Appellant, v. Sun Printing and Publishing Association, Respondent.
(No. 2.)
Second Department,
March 16, 1906.

Headnote

Libel—publication calling scientist a “ humbug ” and “pseudo- ' scientist.”.
A publication stating of a scientist that he is a “ patho social humbug ” and. a “pseudo-scientist” is calculated to injure such person in his calling, and is libelous per se. A complaint in an action for libel thereon is not demurrable.
Appeal by the plaintiff, Arthur MacDonald, from an interlocutory judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk in the county of Kings on the 15th day of July, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer that the complaint does not state facts sufficient to constitute a cause of action.
The action is for a libel in the publication by the defendant of the following: ,
“ Congress and the Patho-Sooial Humbug.
“ To the Editor of the New YorhSun— Sir: I was very much pleased to see your vigorous and healthy editorial in the Sun of Feb. 18, exposing the patho-social humbug and 6 specialist in education/ Arthur MacDonald. There is indeed cause for wonderment that his filthy nonsense should have been tolerated for so long a period. As an apostle of Lombrosian doctrines he has the distinction of being, perhaps, both the shallowest and cheekiest American promulgator of the half truths and whole falsehoods, the fallacies and follies, of this Italian School of Degeneracy. ‘ Doctor ’ Arthur MacDonald is never so happy as when he -can delve in the mire and 'mud of derelict humanity, but for the bystanders, this ‘horrible example ’ for one, is not a useful or instructive exhibit. That any committees of Congress should fail to appreciate the nauseous character of this individual’s 1 work’ is to be deplored by decent people, and the writer sincerely hopes that The Sun will continue fearlessly to expose this persistent self-advertiser and psuedo-scieniist.
“ Hew Tore, Feb. 19. AHTHROPOS.”
p. 466
Wales F. Severance, for the appellant.
Franklin Bartlett, for the respondent.

The 'plaintiff. alleges that he was graduated from the University of Rochester and from the Union Theological Seminary,'and that thereafter, in this country and in Europe, he was a university student of medical subjects;, especially of a medico-legal and crimino4 ’ logical nature; that he served the government at Washington as a clerk un'der the title “Specialist in Education as a Preventive .of Pauperism and Crime.” He further alleges that he- was widely and favorably known here, in Canada and in Europe, both ás a student of criminology and a writer of various publications on that and kindred subjects. He complains that the defendant had printed certain -articles relating to his vocation, work and writings, which were followed by the publication of the letter upon which his action is brought. .

The word'“ humbug ” has become accepted as good English, and has an approved and well-understood meaning as impostor, deceiver, cheat.. (Cent. Dict., Worcester’s Dict., Standard Dict., Stormonth’s Dict., Imperial Dict., March’s Thesaurus.) Writers of pure and' elegant English, like Lowell and Whipple, use it without the apology of quotation marks or of italics. In Nolte v. Herter ( 65 Ill. App. 430 ) the appellant used- the -word “humbug” in conversation, arid the court say: “ Humbug is an imposition, imposture, deception; and as a verb, signifies to impose upon, to cozen, to swindle, all implying intention to misrepresent, by the assertion of what is not’ the actual condition or the suppression or concealment of what is.” “Pseudo” is derived from the Greek “pseudein,” to- cheat, to deceive, and is defined as “a quasi-prefix, in compounds of Greek origin,, meaning ‘ false,’ ‘ counterfeit,’ ‘ spurious/ ‘ sham.’ ” - It is freely used as an English prefix, with words of any origin. (Cent. Dict.) Stormonth, a most accurate lexicographer, derives it from the' Greek “pseudes,” lying, false ; and defines it as “a word frequently prefixed' to another and meaning 1 false, spurious.’ ” I think that the letter brands the plaintiff as an impostor, and as a false or sham scientist, and that, therefore, it is" a. libel upon its face. In Smith v. Stewart ( 41 Minn. 7 ) the words held libelous per se were' “irresponsible, unadulterated first class humbug and fraud.” In

p. 467
Meas v. Johnson ( 185 Penn. St. 12 ) the words were: “You are a first class fraud and of the first water.” In Commonwealth v. Clap ( 4 Mass. 163 ) the term was “ liar, scoundrel, cheat and. swindler.” The books contain many other cases where equipollent words were pronounced libelous per se. I think it clear that the letter passed - beyond any legitimate criticism of the work of the plaintiff to stamp him personally as an impostor, and that it cannot be held as a matter of law that the plaintiff pleads no cause of action therefor. (Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 144 , 154; Whistler v. Ruskin [Times for Nov. 27, 1878], cited in Odgers Lib. & Sland. [3d ed.] 35.) The words had “ a tendency to hurt or are calculated to prejudice ” the plaintiff in his calling, and are actionable per se. (Moore v. Francis, 121 N. Y. 199 .)

In the view I take of this demurrer it is not necessary to-pass upon the point whether special damages are well pleaded. For the plaintiff was not bound to plead them at all. (Moore v. Francis, supra, 204 ; Baylies Code Pl. & Pr. [2d ed.] 239, 240, and authorities cited.) When pleaded it seems that the rule is the same as in an action for slander. (Newell Sland. & Lib. [2d ed.] 868.)

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to plead over within twenty days.

Hooker, G-atnor, ¡Rich and Miller, JJ., concurred.

Interlocutory judgment reversed, with costs,, and demurrer overruled, with costs, with leave- to the defendant to plead over within twenty days upon payment.

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