Youmans v. Paine

This is an action to recover damages for libel. The case was tried at the Delaware circuit September 6, 1893, before a jury, and a verdict was rendered for the plaintiff for $1,000. A motion was made for a new trial upon the minutes, and the argument was heard upon a case and exceptions made upon an order and settled by the judge presiding at the circuit. There are two questions presented upon this motion: The first is that the complaint does not state facts sufficient to constitute a cause of action; the second, that there was no proof upon the trial, as shown by the record, that the defendants printed or published the alleged libel. The libelous article is set out in the complaint in full. A motion was made, at the opening of the trial, and also at the close of plaintiff’s case, to dismiss the complaint, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and assigning, as a reason therefor, that there is no allegation in the complaint showing that the article published refers to the plaintiff in this action.

The complaint was not demurred to, and, for that reason, upon the trial, all of the pleadings may be looked into and examined for the purpose of seeing whether a cause of action has been set forth in the complaint, or whether any indefinite allegation of the complaint has been supplied or admitted by the answer. In other words, “the pleadings are always before the court upon the trial, and are particularly in evidence, whether introduced in form or not.” Holmes v. Jones, 121 N. Y. 461 , 24 N. E. 701 . In the case at bar, the complaint fully sets forth, by a direct averment, that the article was printed and published by the defendants, of and concerning the plaintiff, and that this was done maliciously, for the purpose and with the intent to injure the plaintiff. The answer expressly admits the printing of the article by the defendants; but they deny that it was printed or published by them with malice, or with an intent to injure the plaintiff. The answer also sets forth in detail all of the facts and circumstances relied upon by the defendants to show a want of malice on their part, for the purpose of showing that the publication is privileged, in effect admitting that it was published of and concerning the plaintiff. If it were any longer necessary, under section 535 of the Code of Civil Procedure, to plead by innuendo the application of the language used, the complaint and answer taken together leave no doubt as to the character of the issue framed. Fairchild v. Lynch, 9 Wkly. Dig. 181 . It was there held: “When the facts upon which a defense rests appear in the complaint, it is not necessary that they should be pleaded in an answer in order to entitle the defendant to the benefit of them. A portion of section 535 of the Code of Civil Procedure reads as follows: “It is not necessary, in an action for libel or slander, to state in the complaint any extrinsic fact, for the purpose of showing the application to the plaintiff of the defamatory matter; but the plaintiff may state generally that it was published or spoken concerning him, and, if that allegation is controverted, the plaintiff must establish it upon the trial.” Palmer v. Bennett, 83 Hun, 220 , 31 N. Y. Supp. 567 . This fact was not controverted, but .was admitted by the answer.

The second proposition submitted upon the argument is equally difficult to sustain in favor of the defendants. The defendants, by their answer, practically, specifically admit the publication of the alleged libel, and in their answer, as a separate defense to the publication, reiterate a portion of the libelous article, and justify its publication by them; and they cannot be heard, upon this motion, nor could they have been heard upon the trial of the case, to deny the admission made by the answer. Getty v. Town of Hamlin, 46 Hun, 1 ; Ferris v. Hard, 135 N. Y. 354 , 32 N. E. 129 . There was evidence upon the trial to show that Beil and both of the defendants, as well as the plaintiff, lived, at the time of the publication of this article, in the village of Delhi, and, from the evidence upon the trial, the jury had the right to infer that the defendants had knowledge of the unfriendly relations existing between Bell and the plaintiff. Notwithstanding the fact of this knowledge, more or less made public by the proceedings to disbar Youmans, the defendants’ agent and foreman printed and placed in Bell’s possession the alleged libelous article, with full knowledge, at the time, that the printed slips were to be used by Bell for illegitimate purposes. He swears that he was told by Bell, at the time they were printed, that they were to be furnished to witnesses to be produced upon the trial before the referee. And, while it may be said that Mr. Beil had the right to employ the defendants to print certain questions which he desired to use professionally upon the trial, it cannot be assumed that the spreading broadcast, among witnesses to be. called, of questions of the character of those printed and published, is the circulation of privileged communications, or that conduct of that character, “horse-shedding the witnesses,” is either professional or innocent. The evidence shows that the defendants admitted to the witness Youmans knowledge of this publication. It is claimed, on the part of the plaintiff, that at least one of the defendants had, for a long time prior to the publication of this article, been unfriendly to him, so that the manner of its publication, and all of the facts concerning the printing and delivery to Beil, for the purpose for which the article was to be used, were ail questions for the jury in determining how far the defendants had knowledge and were actuated by malice.

O. W. Smith and E. D. Wagner, for appellants.

W. & Gr. W. Youmans, for respondent