
    Arthur MacDonald, Appellant, v. Sun Printing and Publishing Association, Respondent.
    (No. 3.)
    Second Department,
    March 16, 1906.
    Iiihel — article insinuating lewd motives to scientist — complaint based ' on such, article, when not demurrable.
    A published article, which insinuates that a scientist, in preferring to take physical measurements of the persons of girls rather than boys, and particularly girls over sixteen years of age, was actuated by indecent and lewd motives, may be libelous, and it is error to sustain a demurrer to a complaint on such publication. The question of the libelous character of such publication is for the jury.
    
      Appeal by the plaintiff, Arthur MacDonald, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the 'clerk of the. county of Kings on the 15th day of July,' 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer that the complaint in an action for libel does not state facts sufficient to constitute a cause, of action. .
    The article complained of, as published by the defendant in its newspaper, reads: • v ^ •
    “ The Abnormal ‘ Doctor.’
    “Ejected from the Bureau of Education, ‘Doctor’ Arthur MacDonald, *the ipatho-social investigator, is pestéring Sénators and Representatives with the request that he be enacted into. the Department of Justice, and provided with a laboratory there for ‘the study of the abnormal classes’ under the supervision of the Attorney General; '
    “How eagerly the Department of Justice yearns .for the presence and assistance of this patho-social investigator of abnormal femi-ninity may be inferred from a letter written last. Saturday by Attorney - General Knox to the Secretary of the Charity Organzatioh Society of this City:' z
    “ ‘ Department of Justice,
    “ ‘Washington, D. C., Feb. 21, 1903.
    “ ‘ Sir.— Replying, to your letter of the 1.8th" inst. in which you ask whether this Department has any connection with the bill now pending in Congress, to establish a laboratory for the study of the criminal, pauper and defective- classes, I have to say that. this Department is not a" party in any way to the proposed legislation.
    “ ‘ Respectfully, .
    “‘P. C.- KHOX,
    “ ‘ Attorney-General.’ .
    The Department of Justice repudiates ‘ Doctor ’ Arthur MacDonald, ,his’ Abnormal Laboratory Bill,"and the patho-social humbug. This is merely what might be expected .of any administrative establishment where sanity and clean habits of thought prevail.
    “ That there should .be need now of warning Congress against such a .measure as Senate Bill 6,032 is a circumstance essentially grotesque to any one who knows the facts about ‘Doctor’ MacDonald and his ‘ work.’ Yet the bill has actually been reported by the Senate Committee on the ,'Judiciary and is now on the calendar; and it is only about three weeks since the chairman of that Committee, the venerable Senator from Massachusetts, in asking for its immediate consideration and passage, referred to this ‘ Doctor ’ MacDonald as ‘ the very earnest and devoted gentleman who has' been engaged in that work formerly in the Bureau of Education.’
    “We have already inspected some, characteristic specimens of ‘ Doctor ’ MacDonald’s methods of study. We have -seen how he carried his enthusiasm for the investigation of abnormal femininity to the extent of entrapping young girls and foolish married women by means of a personal advertisement, leading them on to the disclosure of their most intimate affairs of the heart or of sexual propensity, sometimes by letter to him and sometimes at a personal interview which he arranged, and then publishing their confidences ■ in a book advertised by him for sale at fifty cents a copy through a lock box in the Washington Post Office. Any Senator or Representative, who wants to know just what .sort of a person this ‘ very earnest and devoted gentleman ’ really is, and how far the impulse of his pursuits is genuinely scientific, may procure from the library of Congress ‘ Doctor ’ MacDonald’s notorious treatise on c Girls Who Answer Personals.’
    “ Since then the £ Doctor ’ — he is not a Doctor of Medicine, of Law, of Philosophy or of Divinity — has turned himself loose upon the helpless schoolboys and school maidens of the-Washington Public Schools. He has measured and tested the boys and girls to the extent to which he was permitted to go. His professed purpose was to obtain with his tape or his testing machines data for scientific generalizations concerning the relation between the physical conformation and moral or intellectual character. He has published statistics and conclusions. The conclusions are the laughing stock of competent scientific authority, but the statistics do really suggest "thought, in one particular at least.
    “ For example, after consulting ‘Doctor’ MacDonald’s ‘ Girls Who Answer Personals,’ let the Congressman who desires to vote intelligently and properly on Senate Bill 6,032 procure a copy of his ‘ Experimental Study of Children, Including Anthropometrical and Psycho-Physical Measurement of Washington School Children.’ This was published at the expense of the-Government as a public document. Amid its worthless conclusions and heterogenous statistics the one- fact that stands forth conspicuously is the propensity of the c Doctor ’ to exercise his anthropometric energy and psycho-physical curiosity upon girls rather than hoys, and especially upon girls of Sixteen or over, rather than upon hoys of sixteen or over.
    “ In a- partly similar investigation conducted several years, ago by a real Doctor of Medicine, Dr. H. P. Bowditch, for the Boston Board of Health, the number of children measured and examined'was 24,626, of whom 13,-722 were boys, while only 10,904 were girls.
    Doctor-’ MacDonald was more interested in the cases of the girls than in the cases of' the hoys, in the proportion of 8,520: girls to 7,953 hoys; and the.increase of his interest as the age. of the girls increased is shown very significantly and somewhat unpleasantly-in "these tables summarizing the results of his activity in the matter of ‘ psycho-physical ’ measurements:
    
      
    
    
      “ The table we print next is On: aid’s, although its figures are deri own and not ‘ Doctor ’ MacDoned from his.:
    Boys under 14,. examined_______ J. .... ........... 6,049
    Girls under 14 examined.... ,. ............— 5,988
    . Boys of-14 and over examined-. ...-......1......' 1,904
    Girls of 14 and over examined-. . A2,532'
    
      '“ We observe that the text of the bill which this indefatigable measurer wants Congress to pass in the. interest of ‘ patho-social i science ’ provides expressly that he shall continue his investigation in £ Hospitals and Schools,’ his alleged purpose being that £ the causes of social evils shall be sought out with a view to lessening or preventing them.’
    “Look sharp after the ‘Doctor’ MacDonald bill until,the very - end of the session.” ‘ •
    
      Wales F. Severance, for the appellant.
    
      Franklin Bartlett, for the respondent.
   Jenks, J.:

The plaintiff alleges that he ivas. graduated from tne University of Rochester and from the Union Theological Seminary, and that thereafter in this country and in Europe he was a university student . of medical subjects, especially .of a medico-legal and criminological nature; that he served the government'at Washington asa clerk,-, under the title of “ Specialist in Education as a Preventive of Pauperism and Crime.” He further alleges that he is widely and favorably known here, in Canada and in Europe, both as a student of criminology and a writer of various publications on that and kindred subjects. This article charges that the plaintiff, who it states is not a doctor, “ entrapped ” young girls and married women into- disclosing their delicate confidences- (and it is not even stated that this information was gained primarily to aid or to treat these women), and then published them in a book which he hawked for sale by advertisements assuring secret delivery. In other words, that the plaintiff gained confidences of women and compiled and offered to sell them, not in the interest of scientific information or good morals, but for money, in a way that would attract those of morbid and unclean minds. If the charge is true, the plaintiff did a vile thing.

The rest of the article is in form of imputations, based upon the plaintiff’s report in a public document of his professional work. The fact that the article states that the statistics suggest a particular thought, but neither makes a direct charge nor asserts that but one conclusion is possible, does not afford immunity to the defendant. (Sanderson v. Caldwell, 45 N. Y. 398; Odgers Lib. & Sland. [3d. ed.] 134; Rundell v. Butler, 7 Barb. 260.) It is clear enough that the article states that the statistics justify the conclusion that the plaintiff in his professional work applies his testing machine and his tape more frequently.to girls than to -boys because of the sex of the former, and it is almost unnecessary to say that tape measurements at least indicate manual contact.

The “ thought ” is more clearly indicated by the statement that the propensity increases when the girls and boys are sixteen years of age and over, and by the comparisbn made in the relative number of boys and girls examined, by Dr. Bowditch. The article may be construed as an imputation of indecent and - lascivious conduct toward young girls under the cloak of professional investigation.

Upon demurrer we cannot hold that the article is within the purview oE fair criticism in that it is confined to attack upon the work of the - plaintiff and does not brand the workman as an object for public contempt, scorn and obloquy. (Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 144, 154; Whistler v. Ruskin [Times for Nov. 27, 1878], cited in Odgers Lib. & Sland. [3 ed.] 35; Newell Sland. & Lib. [2d ed.] 567.) Ordinarily such a question is for the jury (Triggs v. Sun Printing & Pub. Assn., supra), and we think that it is m this case. The other points raised by the.learned and able counsel for the appellant are discussed in the opinion in MacDonald v. Sun Printing & Publishing Assn., No. 2 (111 App. Div. 465).

The interlocutory judgment is .reversed, with costs, and the demurrer is overruled, with costs.

Hookeb, Gatnoe, High and Millbb,'JJ., concurred..

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to plead over within twenty days upon payment. .  