White v. Delavan — 17 Wend. 49

Majority

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White vs. Delavan.^[1]

Headnote

A publication charging a malster with, using filthy and disgusting water in the malting of grains for brewing, is libellous, and an action may be sustained without showing special damage.

But an action for a libel does not lie for a publication alleged to affect the individual characters of persons and the trade or business carried on by them, if on its face it does not point at the individuals intended, otherwise than that they pursue a particular trade or business in a specified section of a city ; the publication affecting a class of persons, no individual of that class is entitled to sustain an action for the publication.

Libel. The plaintiff in his declaration set forth a publication which appeared in a newspaper, alleging it to be libellous, and charging the defendant with having caused it to be published. The alleged libel [50] is in these words: “To the public. The following statement has been made by a respectable and responsible person, in the presence of Chief

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Justice Savage and E. C. Delavan. The former took down the testimony, The individual making the disclosure felt a delicacy in giving his name to the public, but should his statements be denied, he stands ready not only to give his name but make oath to the facts. He states that so long since as six or seven years, he was knowing to the fact of Fidler and Taylor’s and Robert Dunlap’s malting establishments on the hill in Albany, being supplied with water for malting from stagnant pools, gutters and ditches, often in such a state as to be green on the surface; that such water was collected for several seasons to his knowledge. That he had not only seen the water of this character collected, but deposited in the malting establishment for the use of malting. That no attention was ever paid to cleanliness; the water was often taken from puddles in which were dead animals. When the water was low in the pools, holes were sometimes made in which the pail was sunk, and he had seen the sides of it come in contact with dead animals in a state of putrid it)'; has seen water carried to the malt-houses nearly as thick as cream with filth. Saw last winter water passing on carts coming from the direction of the same filthy ponds and taken to'the malt-houses. There are several malt-houses on the kill, all of which he believes rely on water taken occasionally from such places as he has described. That the facts here stated he believes to be known to hundreds residing in the neighborhood of the malting establishments. Hestates also that seven hogsheads of water are usually placed in a steep-tub at a time, and it is then filled with barley, that he has seen a deposit or sediment of from ten to twelve inches of the most filthy matter settle to the bottom from that quantity of water. This has been from water collected from the places described. That he has no unkind feeling towards any of the brewers; that he is astonished they should deny facts so easily to be proved; that he knows several cartmen who for years have been employed in carting water from the places described to the malt-houses,” The plaintiff, in the introductory part [51] of the declaration, stated that before and at the time of the .publication he was a malster and brewer, in the city of Albany, and that he as well as divers other persons, in conducting the trade and business of malsters and brewers, was at the time, &c., in the use, occupation and possession of a malt-house and malting establishment at a place in the city of Albany called and known as the hill, where he carried on the business of malting grains for brewing; and that the defendant, intending to injure him in his good name and to bring him into public scandal and disgrace with and amongst his neighbors and other good and worthy citizens of the state, and to cause it to be suspected and believed that he had been and was guilty of the filthy, disgusting and improper conduct, practices and offences in his trade and business charged upon and imputed to him by the defendant in the publication, and to vex, harrass and ruin him, and to injure and destroy his trade and business on, &c., at, &c., falsely, wickedly and maliciously caused and procured to be published a certain false, scandalous, malicious and defamatory libel as follows (setting forth thepublication), with various innuendoes, and among others that by the words the hill, mentioned in the publication, the defendant meant the place where the plaintiff conducted his business as a malster; and that by the words “ there are several malt-houses on the hill, all of which he believes rely on water taken occasionally from such places as he has described,” the defendant meant the plaintiff's malt-house among others, and that he, the plaintiff, used and relied upon the filthy water taken from stagnant pools, gutters and ditches, for the manufacture of malt in his malt-house, and sometimes took water for such purpose from filthy holes, in contact with dead animals in a state of putridity. The defendant put in a general demurrer to the declaration, and also assigned as special cause of de

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murrer, that the plaintiff had not alleged any special damage. The plaintiff joined in the demurrer.

A. Taber and S. Beardsley (attorney general), for the defendant.

J. Van Buren and S. Stevens, for the plaintiff.

By the Court,

The publication contains an account of the most filthy and disgusting practices, in the preparation of a-driuk which is known to be very common; and applied to the plaintiff either personally or in the exercise of his trade, it would be clearly libelous without the allegation of special damage. The demurrer admits that here is a false imputation of such practices for the malicious purpose of degradation and ridicule; and the only terious question raised is, whether the plaintiff, by showing himself to be one of the class embraced in the publication, is entitled to an action.

It was insisted on the part of the defendant, that the publication could not be understood as applying to all the malt-houses on the hill, but only to some of them, and that without averments charging the defendant with the intention to impute the filthy conduct, specified in the publication to the plaintiff and cert An other individuals in particular, the plaintiff failed in showing that his malt-house in particular was in the mind of the defendant in making the publication. I am however inclined to think that the words “ there are several malt-houses on-the hill, all of which rely on water taken occasionally from such places, &c., must be understood as applying to every malt-house on the hill, and not to any'number less than the whole. The words strike my mind as comprehending the malt-houses of the whole class of persons who had such establishments on the hill, characterized in the declaration as the plaintiff and divers other persons. Such is the plain, unsophisticated meaning of the publication, and according to such meaning we are bound to read those matters.

This brings the case down to the test established by Sumner v. Buel (12 Johns. R. 475), from which, if that case is to stand for law, it is very difficult, if not impossible, to distinguish this. The plaintiff declared that he was an ensign in a company of riflemen called the Albany Greens, in Col. Lockwood’s regiment, and that the libel which was set out, imputed [53] dishonorable and unofficerlike conduct to-all the officers of the Trojan, Albany and Hudson Greens. On default and an inquisition of six cents damages, the defendant moved in arrest, and the judgment was arrested on the ground that the libel was published of a class of persons. It was agreed that the libel in that case applied distinctly to the officers of the three companies. It was the same assaying these officers, of whom the plaintiff was well known to be one, had been guilty of the criminal conduct charged. The present libel is equivalent to saying the divers malsters on Albany Hill, of whom the present plaintiff is well known to be one, have been guilty of filthy practices. The words are just as definite in the one case as in the other, and not more so. There is nothing giving them a special personal application to the plaintiff in either instance, more tlian to others, and in this case we know not how many. . From the best consideration I have been enabled to give the case of Sumner v. Buel, I must say it is precisely in point; and the judgment must therefore be for the defendant. *