Shea v. Sun Printing & Publishing Ass'n

The article complained of as containing a libel, so far as it is material, is as follows (the italicised portions being headlines in the article.as published):

“ Persecuted by Dr. Bell. Edward J. Shea is said to be the victim of the man viho lives with his wife. Edward J. Shea, who was committed to Ludlow Street jail on October 30th, for defaulting in alimony, was brought before Judge Andrews to-day in supreme court chambers, on a writ of habeas corpus obtained by his counsel, Frederick Keller, on Friday. Mr. Keller has secured two affidavits from Mrs. Annie Pierce and Mrs. Mary McNally, tending to show that Shea has been persecuted through Dr. Bell, of 160 West Eighty-third street, with whom Mrs. Margaret Shea, the plaintiffs wife in this action, is now living.”

A libel is defined to be:

ll A malicious publication by writing, printing,^picture, effigy, sign, or otherwise than by mere speech, which exposes any living-person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause, any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occcupation.” Pen. Code, § 242; Turton v. New York Recorder, 3 Misc. Rep. 314 , 317; 52 St. Rep. 398 .

“ By. all authorities, any unprivileged publication of which the necessary tendency is to expose a man to hatred, contempt, or ridicule, is a libel."

Language is libelous which tends to degrade a person in society. 13 Am. & Eng. Enc. Law, p. 295. Is it libelous to_ write of a married woman that she is living with a man not her husband? The demurrer contends that this statement in the above article has a perfectly harmless meaning. It is possible to ring the changes upon the many meanings of the word “ live.” The inquiry, however, is not whether the words could have been understood in any other way than as imputing a disgraceful charge to the plaintiff, but whether that is the construction which common people naturally put upon them. Ryckman v. Delavan, 25 Wend. 186 , 201; Byrnes v. Matthews, 12 St. Rep. 74 , 79, 80, and this question is for the jury. “If .the application or meaning of the words- is ambiguous, or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine, upon all the circumstances, whether they are applied to the plaintiff, and in what sense they were used ” Per Andrews, J., in Sanderson v. Caldwell, 45 N. Y. 401 . The cases of Ryckman v. Delavan, supra; Patch v. Tribune Assn., 38 Hun, 368 , 369; and Woodruff v. Bradstreet Co., 116 N. Y. 217 , 220; 26 St. Rep. 523 , are to the same effect. The inunendo, if any is necessary, is, in my opinión, sufficient. Eor these reasons the demurrer should be overruled, and there should be judgment for the plaintiff overruling the demurrer, with costs; with leave to the defendant to answer within twenty days upon payment of costs.