Weston v. Commercial Advertiser Ass'n

This action was brought to recover damages for an article alleged to be libelous and to have been published by the defendant of and concerning the plaintiff as a coroner’s physician or deputy coroner of the city of ¡New York.'

The defendant by its demurrer urges the proposition that the article' published by it was not addressed to the plaintiff or to any particular individual, but was addressed to a course of conduct claimed to prevail in a public office; that the alleged defamatory words were written of a certain set or class of men and that plaintiff as an individual cannot maintain this action simply because he belonged to that set. The demurrer and this argument based upon it have thus far been overruled, and, as we think so correctly, that the judgment appealed from should be affirmed.

At the time of the' publication of the article there were four coroners in the borough of Manhattan and a qualified physician appointed by each coroner as a coroner’s physician. Plaintiff was one of these .physicians or, as they were sometimes designated, deputy coroners.

On or about February 2, 1905, one Jackson, then being a coroner for said borough, was convicted of the crime of attempt at bribery. Thereafter and upon February 20,1905, the article in question was published' which, stripped of all allegations by way of introduction and innuendo, read in part as follows:

“ Says Graft ¡Rules the Coroners. Former Bureau Official Declares ' System ’ Runs Perfectly ; ‘ Hush Money ’ Abundant; $500 or even $1,000 Paid by Hotels to Keep Suspicious Oases out of Papers; Death Coined into Cash; Men enter Bureau with a ‘Shoe String’ and Leave with Comfortable Fortunes.

“ ‘ The Coroner’s office,’ said a former prominent official of that office, while discussing it to-day in connection with the recent conviction of Dr. Jackson, ‘ is a hot-bed of corruption in .which the system runs more freely than in any other department, not excepting even the Police Department. The

‘ system ’ runs in the coroner’s office with absolute impunity. It pervades the entire office, but I should say that the most of the graft goes, not to the underlings,' but to those higher up.’ ” Then followed a purported statement in detail of the manner in which the corrupt system said to prevail in said office was carried on, including the following : “ ‘ Say a young girl dies suddenly from purely natural causes. The death is reported and the coroner’s physician goes to the house. He looks at the body, examines it, questions the members of the family and becomes convinced that there is nothing suspicious in the death and that a permit for the burial may be issued. But where is he going to come in ? Looking at the anxious -father and mother he shakes his head and says with a note of pity in his voice , I’m afraid the body will have to be removed to the morgue. I’m sorry, but it is evidently a case for an autopsy.’ Can’t anything be done ? ‘ Oh, Coroner! ’ or ‘ Oh! Doctor,’ the parents exclaim, ‘ can’t anything be done to save us this ? It will break our hearts! And the shame of it! She died a natural death and there is no need of an autopsy. Is there no way of saving us?’ ‘It’s too bad, really, but I •must perform my duty no matter how disagreeable it is,’ replies the coroner or his deputy, in a sympathetic'way, and .with still another note in his voice as he moves towards the door.' Then there is a hurried conversation among the members of the family. The mother disappears, reappears and sidles up to her husband and he in a moinen t is beside the departing official who has not yet reached the door. ‘ I’m very sorry, doctor, that nothing can be done,’ and without a moment’s delay comes the response, ‘ Oh, that will be all right,’ and the official is gone.- The poor family have given up a badly needed $5 bill, but, they have saved a loved one’s body from the morgue; the official' quietly chuckles to himself as he makes his way to the street $5 is $5.’ ”

Then followed still further statements of the manner in which this'same system upon a larger scale of payments was' employed in extracting money from proprietors of hotels t where deaths had. occurred liable to attract suspicion or occa

Then still further we find : “ ‘ In the coroner’s court,’ added the former official, ‘ the same £ long green ’ has a far reaching effect. This is the evidence of the coroner’s physician which may be affected by it and the charge of the coroner to the jury. In fact, there are a hundred and one ways in which money will tell.’ £ But what are you going to do about it ? ’ asked the former official. £ Abolish the coroner’s office ? Mot a bit of good. It would only turn the graft into the pocket of some other person or persons. Official corruption is widespread and every man seems to be out for the £ almighty dollar.’ ’ ”

Proper allegations are employed in the complaint alleging the identity of plaintiff and the relation to him of the various statements in the article.

So far as we are aware there is- no particular controversy about the general principles of law which are applicable to such an alleged libelous article and which distinguish between one relating to a body or a class and one pointing at an individual. The distinction between an article censuring or satirizing an entire class or body of individuals and one which aims defamatory statements at an individual is well settled. The former may not be made the basis of an action for individual damages, and the latter may. As it was expressed in Ryckman v. Delavan ( 25 Wend. 186 ), in terms which advantageously may be quoted now : “ General censure or reproof, satire or invective, whether on moral, theological, or political grounds, cannot ordinarily be prompted by individual malice or intended to produce personal injury. * * The principle upon which the civil remedy is allowed does hot apply here, and the great interests of society require that it should not be made to apply. It is far better for the public welfare that some occasional consequential injury to an individual, arising from general censure of his profession, his party or his sect, should go without remedy, than that free discussion on the great questions of politics, or morals or faith, should

When we test the article in question by the principles thus enunciated, we believe that a jury fairly might be permitted to say that it sufficiently identified and pointed at the plaintiff to be libelous of him, although it did not in terms name him. The article must be assumed to have related to conditions as they existed at the time of its publication. Plaintiff then was one of four coroners’ physicians in the borough of Manhattan. The article was written at a time when the criminal conviction of a coroner was apt to attract close and unfavorable attention to the office and its occupants. It detailed with great, particularity the manner in which unlawful and iniquitous practices were employed to secure illegal gains, and more than once specifically mentioned the coroner’s physician as employing these means. In addition, it stated that these criminal practices pervaded “ the entire office,” but that “ most

The case of Bornmann v. Star Co. ( 174 N. Y. 212 ) has been referred to by the respondent as especially decisive of the merits of this demurrer. We agree, however, with the learned counsel for the appellant that the discussion in that case did not proceed especially upon the question here involved. The divergence in opinion between different members of the court arose over other points. Still, the prevailing opinion was based upon assumptions which, so far as applicable, do. tend to sustain the sufficiency of plaintiff’s complaint.

Cullen, Ch. J., O’Brien, Haight, Vann, Werner and Willard Bartlett, JJ., concur.

Judgment affirmed.