D'Andrea v. New York Press Co.

O’Brien, J. : ' The. appellant insists' that the article complained of gives rise to. the natural inference 'that plaintiff was the person who was with the woman when she shot her. husband; that he was quarrel607 ling with ' the murdered husband; that it was in his defense that the shooting was done; that she had deserted her husband for the plaintiff; that the husband' was incensed against the plaintiff and attempted to'beat him; that the wife thought so much more of the plaintiff than she: did of her husband that she was willing to commit'murder for him;. that he was an accomplice and incited her to the murder, and that' he was equally guilty with her. Further, he contends that “ the article insinuates that the plaintiff' was guilty, but it was not possible to convict him.” ' Although the article does not warrant all or such broad inferences, we think its tendency -was to injure' the plaintiff and hold him up to' obloquy. As said in More v. Bennett (48 N. Y. 472), “.the test is Whether, to the mind of an intelligent man,, the tenor of the article and7 the language used naturally import a criminal or disgraceful charge.” And in Winchell v. Argus Co. (69 Hun, 354) it was said: “ It is quite true * * * that when we go beyond, well-defined: limits, marked by criminal charges ás fixéd in oral slander, of words actionable per se, We have not the sure guide in determining the limit of what are libelous publications. But such doubt must be solved by the application of the tests which we have seen consist, of whether the libelous words charged tend to diminish the respectability of the plaintiff and expose him to disgrace, ridicule and obloquy.” And, as said in Shelby v. Sun Printing Association (38 Hun, 474), “ As soon as the court has arrived at the conclusion that the publication complained of is one which is calculated' to subject the party assailed to any one of the consequences named (scandal or contumely), it becomes .its duty to declare the action properly brought and to maintain it.” • .' -We think that the article, though couched n guarded terms and stating that the plaintiff was not convicted, after trial, of being an accomplice, contains statements sufficient to justify a jury in finding that he was represented as holding a questionable position with a married woman. It is, of course, not libelous to say of a man that he was seen in the street walking with a married woman, but when, in addition to > this, it is stated that while so walking he is “ confronted ” by the husband, who is angered at meeting them together,' which anger it cannot be assumed was without some cause, and that the husband thereupon struck the person found walking with his [608] wife,, and the latter in defense took out a revolver and shot: the husband, we - think the fair inference to be drawn:from5sueh<astatemént is, that the relations between the third person and the married woman were not entirely innocent, but were such as to excite the jealousy and anger of the husband and lead the wife, in order to-protect plaintiff against the husband’s, assault, to: commit murder. Reading the article as a whole, which, in addition to the incident.' mentioned, states that the. plaintiff was subsequently arrested and tried for complicity in the murder, wé think it. must be held to have been libelous j>cr sé. However, if the article would not warrant our going so far,, and if we take the, view most favorable toi the defendant; that the language is of doubtful significance, and does riot directly charge or insinuate that the plaintiff was guilty of a crime- and. is not per se defamatory, then, under the authorities, there was clearly a question for the jury as to the meaning'to bel attached to the language. !. As said in Gallagher v. Bryant (44 App. Div. 527): “ In an action for defamation where the words published are of doubtful signification and capable of being regarded as either libelous or innocent, it is for the jury to say in which sense the language was used * • * *.’’ It is said in One case that where there is room for the least criticism upon the import of words of doubtful meaning, the: question as. to what they really mean must be left to the. jury. • (See,., also, Sanderson v. Caldwell, 45 N. Y. 398.) So in this case if there: is arly doubt as to whether the words were innocently used or were-defamatory, the question should have been left to the. jury. The judgment accordingly is reversed and a new trial ordered, with costs to the appellant to abide the event. Ingraham, McLaughlin, Hatch and Laughlin, Jj., concurred. Judgment reversed,' new trial ordered, costs to appellant to abide' event. Note.— The rest of the cases of' this term will he found in the next volume; 63 App. Div.— [Rep.