Cruikshank v. Bennett

Gaynor, J.: This motion seems to arise out of a misunderstanding of the law of evidence and of pleading in respect of damages in actions for libel. A publication in writing which [233] the law presumes must do damage is called a libel per se. No-special damage need be alleged in the complaint or proved to-maintain an action thereon. An allegation of general damage-to reputation or tó business, or to both, suffices. Special damage may, however, be pleaded and proved in such an action and recovered in addition to general damage. A publication in "writing which the law will not presume must do damage, is not a-libel unless it does special damage; and an action cannot be-maintained upon it at all unless special damage is alleged in the-complaint and proved. General damage cannot be recovered in-such an action, but only special damage, and if the latter be not pleaded no cause of action is stated. In order to prove special' damage in an action for either kind of libel, it must be specifically alleged in the complaint. For example, if loss of marriage, or of patients, clients, customers or contracts be claimed, the names and particulars must be stated therein (Odgers on L. & S. 308-318; Hallock v. Miller, 2 Barb. 630). This rule of pleading is one so long established and understood in England' and here that we do not find it questioned, unless now and then unintentionally here in recent decisions not deemed authoritative. In American Fabric Co. v. Eureka Co. (18 Abb. N. C. 70) the-learned judge said that “the averment (in the complaint) that the plaintiff has lost many sales and profits which it would have-made in its business but for the defendant’s acts ”, was “ an averment of special damage which the plaintiff need not have-made, but having chose to make it must particularize.” But was not the contrary the case? For not particularizing, the allegation was not a sufficient allegation of special damage, and no. evidence could be given under it (Childs v. Tuttle, 48 Hun, 228). Why then a bill of particulars under it? It would be as reasonable-to make a plaintiff in an action for fraud give a bill of particulars-of the facts constituting the fraud under a mere general allegation-in the complaint of fraud, which is insufficient. In the case at bar,, if the words impute adultery they are libellous per se. A written charge of adultery against man or woman always was libellous per se. The strange intimation to the contrary in the-dissenting opinion in the Gates case (155 N. Y. 234) is the first that seems ever to have been made (Cady v. Brooklyn Hnion, 23 Misc. Rep. 409). The plaintiff evidently relies wholly on proof of general damage, for he has not pleaded any special damage, viz..., [234] the complaint has no allegation that patients were lost, giving their names. Why then does the defendant stir him np to give particulars and make proof of such damage? And if the libel were not such per se, the defendant would do better to demur to the complaint than help eke it out by this motion, for in that case without an allegation of special damage the complaint would not state a cause of action. Under the complaint the plaintiff can claim general damage only. That he is a physician is only an incident on the question of general damage. Who and what the plaintiff is, and his profession or trade, are always to be considered an action for damages for a libel per se, on the question of how much such a libel must have injured such a man. True, in such an action (i. e. for a libel per se) general damage includes general falling off of business or professional income (Odgers on L. & S. 318, 319); but a statement of the amount of such falling off is not here asked for, if it could be. In Bergmann v. Jones (94 N. Y. 51), where the admission of evidence of such falling off under a general allegation of damage to business was sustained, the learned judge writing inadvertently speaks of such damage as special damage. In the case of a libel per se, general damage to the plaintiff’s business, or in his profession or trade, is part and parcel of the general damage which the law presumes that such a libel causes, and the extent of it may be proved and recovered under a proper general allegation of damage; whereas the loss of particular customers, and the like, comes under the head of special damage, and unless specially alleged is not pleaded at all, and no evidence can be given of it. The motion is denied with $10 costs.