Statement of case. avenue. Rudolph Bergmann owns the structure. In the front part he keeps a small grocery store. The rear rooms he occupies as sleeping and eating-rooms. His habits are miserly, and his wife, who left him some time ago, is said to have left because of the meagerness of his supplies, and he now lives by himself, with none to share his joys and sorrows. The upper part of the building is occupied by a German tenant, who confesses that he has always looked on Mr. Bergmann with suspicion. Beneath the building is a noisome cellar. It is always covered with about two feet of water, and having been the depository of all the rubbish of the store and dwelling-house, has for some time emitted the most noxious vapors. Two or three months ago the cow of one of his neighbors died, and the carcass lay for seven days unburied. It was fast becoming a mass of corruption, when Bergmann, impelled by some motive not understood, cut it into pieces and cast the fragments into the cellar. The tenant says that at the same time the putrid carcass was thrown into the cellar, he heard a noise as of a man splashing around in the water in the cellar. It was the dead of night when these noises aroused him, and on making further observations, he saw Bergmann cut away the cellar stairs so as to prevent descent into it and bolt down the hatchway. Convinced that the body of a man had been cast into the cellar, and that the carcass of the cow had been thrown in so as to confuse any who might search the place, the tenant told his story to Justice Schmidt. The justice and constable Walker visited the house. The cellar stairs were indeed gone, and the constable found it necessary to make his way into the flooded cellar with a ladder. The stench was overpowering, but he walked around in the water almost up to his knees till he had learned enough to convince him that there was reasonable ground for the tenant's suspicion. He says that while feeling around in the water, his hand came in contact with what he believes to have been a human arm, and afterward with teeth, which he judges were those of a human being. Why he did not bring them out in the light of day does not appear. The matter was brought to the notice of the town committee and an investigation will Statement of case. be made. Bergmann's neighbors now recall the fact that a year ago a man who boarded with Bergmann strangely disappeared, and a few days later his grocery was replenished with a new stock, thereby meaning and intending to accuse the plaintiff of the crime of murder, or of being accessory thereto, and meaning, and intending to have it understood and believed that the plaintiff had been guilty of the crime of murder, and had murdered and concealed a man in his, the plaintiff's cellar, or that the plaintiff was accessory to such crime and guilty as such, and meaning and intending to accuse the plaintiff of, and to have it understood and believed that he was guilty of a great and infamous crime, and meaning, and intending to accuse the plaintiff of odious and disgraceful conduct, and thereby injure and destroy his character and bring him into disrepute and disgrace. Fourth. That said article and matter so as aforesaid published, so far as it accused, charged or insinuated that this plaintiff had been, or was guilty of the crime of murder, or of any other crime, 'is utterly false and defamatory, and all such statements and insinuations therein contained to that effect, and all the statements and insinuations reflecting upon the character or conduct of this plaintiff to the effect that he had been guilty of odious, disreputable or disgraceful acts or conduct, are in like manner false and defamatory. Fifth That plaintiff has always been a good and worthy citizen and was never guilty of any of the criminal, infamous or disgraceful acts which are charged, stated or insinuated in the said libelous article, and had enjoyed the respect, confidence and esteem of the community where he lived and wherever he was known. That by reason of the composition and publication of the matter aforesaid in such newspaper, the plaintiff has been brought into disrepute and disgrace and has suffered in his good name and reputation, so much so, that he is accosted and insulted in the streets by allusions to this defamatory matter, and has suffered and still suffers thereby. Sixth. That by means of said publication, the plaintiff Statement of case. has been greatly injured in his reputation to his damage $20,000. Seventh. That by means of said publication, the plaintiff has also been greatly injured in and about his business as a merchant by the loss of good-will and patronage, and suffered pecuniary loss thereby, to-wit: to the amount of $5,000." The facts, so far as pertinent to the questions discussed, are stated in the opinion. B. F. Einstein for appellant. In an action for libel, a party claiming for loss of patronage must set out in his complaint the names of the persons whose patronage he lost. (Shipman v. Burrows, Hall, 399, 411, 412, 419, 420; Hallock v. Miller, 2 Barb. 630; 2 Phil. Ev. 248; Hartley v. Herring, 8 Term R. 133; Tilk v. Parsons, 2 C. & P. 201; Tobias v. Harland, 4 Wend. 537; Linden v. Graham, 1 Duer, 670; Havemeyer v. Fuller, 60 How. Pr. 316, 322; Kendall v. Stone, 5 N. Y. 14; Knickerbocker L. Ins. Co. v. Ecclesine, 34 Supr. Ct. 76; Jutte v. Hughes, 67 N. Y. 267; Stafenhorst v. Am. Manuf. Co., 46 How. Pr. 510; Herrick v. Latham, 10 Term R. 281.) To entitle a party to recover special damages they must appear to be the legal and natural consequence of the wrongful act charged. (Crain v. Petrie, 6 Hill, 522; Hastings v. Palmer, 20 Wend. 225, 226; Olmstead v. Brown, 12 Barb. 657, 662; Beach v. Ranney, 2 Hill, 314; Terwilliger v. Wands, 17 N. Y. 54, 57; Schille v. Brokhans, 80 id. 614; Masterton v. Village of Mt. Vernon, 58 id. 391; Church v. Howard, 79 id. 415, 423.) If the meaning of the words in an alleged libel is ambiguous, or the sense in which they were used is uncertain, and they are capable of both an innocent and an injurious interpretation, it is for the jury to determine, upon all the circumstances, in what sense they were used. (Sanderson v. Caldwell, 45 N. Y 398, 402, 403; Lewis v. Chapman, 16 id. 369; Snyder v. Andrews, 6 Barb. 43; Edsall v. Brooks, 3 Robt. 294; Dalloway v. Terrell, 26 Wend. 388; Townshend on Slander and Libel, § 338; Maguire v. Knox, 5 Irish Com. L. 408.) The court erred in charging the jury that it was in the Statement of case. discretion of the jury to give the plaintiff exemplary damages. (Sanders v. Evening Mail Ass'n, 9 Hun, 288, 294, 295; Taylor v. Church, 8 N. Y. 452, 460; 1 E. D. Smith, 292; Bennett v. Smith, 23 Hun, 50, 53; Hamilton v. Eno, 81 N. Y. 116, 127; Fry v. Bennett, 4 Duer, 257; Hun v. Bennett, 4 E. D. Smith, 659.) Benjamin Estes for respondent. The article complained of is libelous per se. (Townshend on Slander and Libel [3d ed.], 262, § 176; Starkie on Slander [Wend.] 169; 2 Addison on Torts [Wood's ed.], 307, 311; Cooper v. Greeley, 1 Denio, 359; Cramer v. Riggs, 17 Wend. 209; Moore v. Bennett, 48 N. Y. 472, 477; Edsall v. Brooks, 26 How. Pr. 431.) The article, being libelous per se, is therefore actionable per se, and no proof of actual malice or of damage is required. Both malice and damage are implied. (2 Add. on Torts [Wood's ed.], 311, § 1090; Rout v. King, 4 Wend. 114, 136; 7 Cow. 613; Gillman v. Lowell, 8 Wend. 578; Sanderson v. Caldwell, 45 N. Y. 398; Terwilliger v. Wands, 17 id. 49, 54; King v. Cale, 7 Cow. 613, 620; Darry v. People, 10 N. Y. 138; Viele v. Gray, 10 Abb. Pr. 7; Fry v. Bennett, 4 Duer, 247; Howard v. Sexton, 4 N. Y. 157.) The jury in this case had the right to give exemplary or vindictive damages in addition to the actual damages sustained by plaintiff. (Samuels v. Evening Mail Ass'n, 75 N. Y. 604; King v. Root, 4 Wend. 139; Taylor v. Church, 8 N. Y. 461; Tillotson v. Chatham, 3 Johns. 56.) Plaintiff having alleged injury to his business, in his complaint, evidence tending to prove such allegation was properly admitted. (Terwilliger v. Wands, 17 N. Y. 60.) The evidence offered relating to what occurred before some pretended public body in New Jersey was properly rejected. (2 Addison on Torts [Wood's ed.], 336, § 1107; Townshend on Slander and Libel, 398, § 228; IIasmer v. Lovland, 19 Barb. 116; Perkins v. Mitchell, 31 id. 461; Cobman v. Southwick, 9 Johns. 49; Woodward v. Paine, 15 id. 493; Wilson v. Boerum, id. 286; Powell v. Walters, 17 id. 176; Van Ness v. Hamilton, 19 id. 368; Fry v. Bennett, 5 Sandf. 68-75; Andrews v. Van Opinion of the Court, per MILLER, J. duzer, 11 Johns. 349; Daly v. Byrne, 1 Abb. N. C. 160; Hayes v. Tibbetts, 2 Abb. [N. S.] 97, 102; Bush v. Prusser, 16 N. Y. 361; Hutchkiss v. Oliphant, 2 Hill, 510; Dale v. Lyon, 10 Johns. 447.) An injury to a person's good name, good-will of business, or reputation is an injury to property. (Samuels v. Evening Mail Ass'n, 75 N. Y. 604; Shoe and Leather B'k v. Thompson, 18 Abb. Pr. 413; Knickerbocker L. Ins. Co. v. Ecclesine, 34 Sup. Ct. 97, 106; Seeley v. Engell, 13 N. Y. 548; 6 Bosw. 181; Masterton v. Village of Mt. Vernon, 58 N. Y. 395, 396.) MILLER, J. Upon the trial of this action objections were made, by the defendant's counsel, to certain questions which were put inquiring as to the losses sustained by the plaintiff in his business by reason of the publication made by the defendant and set forth in the complaint. The plaintiff was asked, whether, immediately after the publication of the article alleged to be libelous, his business fell off, which question was objected to, the objection overruled, and exception taken by the defendant. The plaintiff answered that it did. He then testified as to the amount of his sales per diem up to the time of the publication of the article in question, and he was then asked the amount of his sales immediately after said publication. The question was objected to, the objection overruled and an exception taken by defendant. The plaintiff then answered, stating what his sales were on week days and what on Sundays. The question was then asked him as to the amount of sales on Sundays immediately before the publication, which question was also objected to, the objection overruled, and exception taken, and the wit ness answered. The article was libelous on its face, and assailed the character of the plaintiff individually and as the proprietor of a grocery store. In the complaint the plaintiff claimed damages to his reputation, by reason of the alleged libel, to the amount of $20,000. He also alleged that by reason of the publication he had been greatly injured in his business as a merchant by the loss of good-will and patronage, and had suffered pecuniary loss thereby, to-wit: to the amount of $5,000. SICKELS VOL. XLIX. 8 |