Wahlheimer v. Hardenbergh

Ingraham, P. J.: The action was for libel and the libel published of the plaintiff was clearly libelous per se. The only question is whether this defendant is responsible for the publication of the libel. It seems that certain newspapers in the city of New York organized what was called the New York City News Association, adopted a constitution and by-laws, stating that the object of the association was the gathering and distribution to its members of any and all kinds of news, that the association is not to make a profit and is not to engage in the business of selling or trafficking in news, and providing that the association shall consist of a number of newspapers and the Associated Press; that to each member should be issued a certificate signed by the secretary of the association designating the newspaper entitled to receive reports from the news association; that there should be officers and an executive committee of five, and prescribing the duties of the officers and the executive committee, and further providing that the association should ' appoint a manager and prescribe his duties. This instrument does not appear to have been signed by corporation or individuals, no individual or corporation being named as those organizing the corporation, and the articles of association merely contained the names of certain newspapers and the Associated Press. The expenses of the association were to be met by a pro rata assessment upon each newspaper. It does not appear by whom the newspapers were represented. The defendant was appointed general manager and secretary. His duty was to supervise the operation of the association under the direction of the executive committee, to manage the business and the financial end of the association, and to see that the work was carried on as directed by the executive commit [192] tee. He did not edit or have charge of the stories that were sent out; that work was assigned to assistant managers and editors. After the news was collected by reporters it was written out by editors; the day manager determined what stories should be sent out during the day, and the night manager, when he was on duty, determined what stories should be sent out during the night. The executive committee consists of five persons, with the president and vice-president of the association, and meets twice a month, and the whole association meets four times a year. The defendant, as general manager, employed the reporters, the editors and the other employees, including the day manager and the night manager. They were all responsible to the defendant for the carrying out of his directions. The news was gathered by the reporters and was then telephoned to the office, written out by the editors and then sent out to the various newspapers for publication. Apparently the association had no property, had no income, and did no business except to collect news and send it to various newspapers for publication, and each of the newspapers paid its pro rata share for the expenses incurred in obtaining, writing, editing and distributing the news to be published. It is difficult to state just what this association is. It can hardly be called a joint stock association, as it has no stock or property, makes no profit and divides among the various newspapers composing it the expenses incurred by the manager in carrying out the objects for which the association was organized. The defendant, as general manager, having the appointment of his subordinates, would undoubtedly be the agent of the various newspapers that were thus organized to accomplish the particular purpose of the association. But it would also appear that he acted independently in organizing the business, appointing employees and others for the purpose of conducting the work of the association, and exercising the entire control of the operations carried on by the news association. That this defendant was the responsible head of this organization, that he it was who conducted it, is perfectly apparent from the duties which he performed. This being so, I do not see why he is not responsible for the acts of his subordinates. The responsibility of this defendant or the news association [193] is not for the subsequent publication in the newspapers, but for the publication of the libel in sending it out to the various newspapers for publication. It is elementary that all connected with the publication of a libel are responsible as joint tort feasors for the damage caused thereby. (Stokes v. Morning Journal Assn., 72 App. Div. 184; Pickford v. Talbott, 211 U. S. 200.) As I understand the rule, all that is necessary to make the defendant responsible for the publication of a libel is that he or his authorized agents employed by him to make the publication actually published the libel. His agents in doing what they did were acting within the scope of the authority conferred on them. Who would be responsible in this case if not the defendant? This association, without property and without responsible members, consisting merely of newspapers, not of individuals or corporations publishing or controlling the newspapers, could not be forced to respond for an injury caused by defendant or his agents in the publication of the libel; and he, by accepting such employment as general manager of the association, thereby became a principal chargeable with the acts of those whom he employed to carry out the purpose of procuring and distributing news for publication. The mere fact that this defendant did not in all cases assign reporters to do any particular work, or that he refrained from investigating the reports and articles that were sent out by his subordinates, whom he had the power and authority to control, certainly cannot relieve him from responsibility for the acts of his agents. Once establish the relation of principal and agent between defendant and the employees who sent out this article for publication, as I think the jury were entitled to do from the testimony, I think that the defendant was liable for the publication of the libel. Any other conclusion would render it possible by the establishment of such an indefinite and unsubstantial association as that shown in this case, to avoid responsibility for the serious damages often caused by libelous publication; and the proprietors and managers of these news associations, spreading as they do charges against individuals, must, for the general protection of society, be held responsible for the acts of ' their subordinates and agents. [194] The only other question presented is whether the court was in error in leaving it to the jury to add to their verdict punitive damages. It seems to me that the instructions can be sustained by Crane v. Bennett (177 N. Y. 106). That action was for libel against the Hew York Herald, and the defendant sought to avoid responsibility for punitive damages upon the ground that at the time of the publication he was absent from this country, and that the acts complained of were performed in his absence by his manager and employees. The court said: “ That the proprietor of a newspaper is responsible for all that appears in its columns, although the publication may have been made in his absence and without his knowledge, is too well settled to require discussion. His liability is not upon the ground of his being the publisher, but because he is responsible for the acts of the actual publisher. * * * In libel cases, the falsity of the libel being proof of malice sufficient to uphold exemplary damages, * * * the right to recover them in the discretion of the jury rests in the very act done in the publication of the false libel; and whoever is chargeable with that act is chargeable with the legal consequence, which is the right of the jury to redress the wrong by imposing reasonable damages beyond any injury actually shown. * * * Although a mere servant or agent employed to perform some specific act for a principal may not render the latter absolutely liable for increased damages on account of his motives in performing it, yet, when a principal surrenders to his general manager and employees all his business affairs, or the general management of some particular business, absents himself from the jurisdiction where his paper is edited and published, leaving such manager in entire charge thereof, he is responsible for the manner in which his business is conducted. In other words, a principal surrendering his entire business to another to be conducted for him should be held to the same responsibility he would incur if he himself personally directed it, as to all matters coming within the line of the authority which he has conferred upon such manager or employees. Therefore, while, as was held by the trial court, the defendant might not have been liable for any personal ill-will of his employees or servants against the plaintiff, if there was a willful departure from such [195] business for their private or individual purposes, yet he is responsible for the manner in which the business so delegated was performed by his manager, and if the publication complained of was wanton, reckless or heedless of the rights or feelings of the plaintiff, and upon being apprised of the groundlessness of the charges there was a continued refusal to make or publish any retraction thereof, the defendant was fully responsible for the acts of his general manager, and liable for such punitive damages as the jury, in its discretion, might award.” In that case the court held that the charge to the jury, “that the falsity of the libel is sufficient evidence of malice to uphold exemplary damages, but the plaintiff’s right to recover exemplary damages is in the discretion of the jury,” was correct. The court in that case cited and reaffirmed the dissenting opinion of Davis, P. J., in Samuels v. Evening Mail Assn. (9 Hun, 288), adopted by the Court of Appeals in reversing that judgment (75 N. Y. 604), establishing that plaintiff in an action for libel gives evidence óf malice whenever he proves the falsity of the libel, and it then becomes a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages, and the question is not to be taken away from the jury because the defendant gives evidence that there was, in fact, no actual mahce. It was clearly evidence to show that this libel was wantonly, recklessly and heedlessly published, without inquiry of plaintiff or without any investigation as to its truth. As it seems to me the defendant was responsible for, the acts of his agents. I think, therefore, there is no error which would justify a reversal of the judgment. The judgment and order should, therefore, be affirmed, with costs. McLaughlin and Laughlin, JJ., concurred; Clarke and Scott, JJ., dissented.