
    Oscar L. Triggs, Respondent, v. Sun Printing and Publishing Association, Appellant.
    
      Newspaper article, ridiculing the ideas of poetry of an instructor in English—when not libelous per se — demurrable if special damages be not alleged.
    
    Newspaper articles, published of and concerning an instructor in English at a university, engaged in writing and lecturing on literary subjects, written in a spirit of exaggeration and fun and ridiculing his ideas of poetry, do not tend to expose him, as an individual, to ridicule and contempt, or' to injure him in his profession, occupation or business, and are not libelous per se.
    
    Lauqhlin, J., dissented.
    A complaint in an action of libel, based upon an article which is riot libelous per se, is demurrable, unless it alleges special damages.-
    Appeal by the defendant, the Sun Printing and Publishing Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the • county of New York on the 20th day of. October, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    
      Franklin Bartlett, for the appellant.
    
      Otto T. Hess, for the respondent.
   Ingraham, J. :

The action is for a libel. There is no special damage alleged, and by a demurrer to the complaint the defendant raises the single question as to whether the article concerning the plaintiff is libelous per se. The plaintiff in his complaint alleges that he was and still is, “and at all 'times hereinafter mentioned, and for more than seven years last past (has been) an instructor or teacher in the Department of English at the University of Chicago, in the City of Chicago, State of Illinois, and was duly practicing his profession at the said University of Chicago; ” that he was also engaged in lecture and. extension work in connection with the University of Chicago and in private lecturing and writing on literary subjects since his association with the University of Chicago in 1892; that he “ had always as such private docent and instructor in the Department of English of the' University of Chicago, and as such lecturer and writer on literary subjects, conducted himself with honesty, fidelity and dignity, and had never been guilty nor suspected to have been guilty of any incompetency, inability, nor that he was ill-fitted or poorly qualified to occupy his position as an instructor in the University of Chicago or-as a lecturer and writer; that he had never been guilty, nor suspected to have been guilty, of sensationalism, misconduct, dishonesty or infidelity in the performance of his duties in his said. capacity or profession as a teacher, lecturer and writer, or as instructor in the Department of English in the University of Chicago; that prior to the publication hereinafter set forth, plaintiff had enjoyed a wide reputation for honesty, uprightness, integrity, fidelity, dignity, competency and" ability; ” that in the performance of his duties as instructor in the department of English in the University of Chicago he was assigned to the “ presentation of certain ideas and of the conduct of a certain line of work in literature in the classroom; that in his lectures before the said students he was assigned to the work of dealing with current English literature, and particularly with the poets, Longfellow, Whittier, Emerson, Holmes, Garland and others; that plaintiff was the Professor Oscar Lovell Triggs, referred, to herein who conducted the said lectures, and that in the presentation of his ideas and of his work, the said plaintiff acted under the direction (of), and as an assistant and subordinate to the head of the Department of English of the University of Chicago.”

We are not told in the complaint what particular ideas the plaintiff presented or promulgated respecting the poets named, but the writer of the article has seen fit to criticise what he understood to be the plaintiff’s ideas of poetry in general and of certain poets named. The plaintiff objects to the article published as tending to expose him to ridicule and contempt, and to impair his usefulness as a teacher in the university in which he is an instructor. There is nothing in these articles which can possibly be construed as charging the plaintiff with a crime, or disgraceful conduct, or any act which would subject him to the contempt of the community. The articles are written and plainly intended to be understood as humorous and not serious. They, are filled with exaggerations as to what the author considers to be the result of the application of the ideas of the plaintiff to certain poems specified. But that the spirit of exaggeration and fun pervading these articles was not intended seriously, nor to be taken as seriously charging the plaintiff with any misconduct or lack of professional ability is quite clear; and however much fun is made of the teachings of the plaintiff and their effect as understood by the writer of the articles, there is nothing in any of them that can be taken as a serious charge against he plaintiff, or as subjecting him to contempt. The plaintiff has taken this publication too seriously, and has considered what was intended to amuse the readers of the paper as a serious criticism upon his work, which it seems to me a study of these articles does not warrant. We are not unmindful of the definitions of what constitutes a libel per se, and that in general terms it is the rule that every publication which charges or imputes to any person that which renders.him infamous, odious or ridiculous is libelous; but so far as I know, an article which makes an opinion pronounced by a teacher ridiculous has never been held libelous. There is certainly a distinction between a publication which tends to make the individual infamous, odious or ridiculous and a publication which relates to a person’s opinions upon topics of public interest. Certainly in no case to which our attention has been called has it ever been held that a publication which tends to ridicule opinions upon controverted subjects is libelous, as tending to make the individual who is responsible for those opinions ridiculous. There is nothing here said of the plaintiff which could tend to impair his' character as a geütlemán or as a competent teacher of English; and no one reading this article would for a moment understand that the writer intended anything but to make fun of such opinions as it was supposed the plaintiff in his public character as a teacher had promulgated.'

Nor do I think this article can be construed as a publication which would tend to injure the plaintiff in his profession, occupation or business. There is nothing in the article that alleges that the plaintiff is incompetent to teach the English language to students in the university, and, as far as I can see, nothing from which any one would infer that the writer wished to intimate that the plaintiff was not an entirely competent and distinguished professor of the institution with Which he was connected. The whole article was written to ridicule certain ideas fpr which it was understood the plaintiff was responsible. No published work of his is criticised; no lectures that' he has delivered to. his classes are held up to ridicule, and this is nothing more than an extreme criticism of a public lecturer and writer who has criticised the writings of others. The article certainly tends to • make the ideas with which the plaintiff is charged ridiculous, but there is nothing charged against him which makes him as a man infamous, odious or ridiculous.

In Stone v. Cooper (2 Den. 293) Chancellor Walworth, in the Court of Errors, said: But to sustain a private action for the-recovery of a compensation in damages for a false and unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from the publication of the matter charged against him, or the nature of the charge itself must be such that the court can legally presume he has been degraded in the estimation of his acquaintances or of the public, or has suffered some other loss either in his property, character or business, or in his domestic or social relations, in consequence of the publication of such charge. Where from the nature of the charge, therefore, in connection with other facts stated in the plaintiff’s declaration, no such injury or loss will necessarily or even probably result to him in consequence of the publication of such charge, he cannot recover damages as for a libel without averring and proving that special damage has been in fact sustained by him in consequence of the publication of the false and unfounded charge.”

I think, therefore, that this article cannot be said to be libelous per se, and as no special damage is alleged, the complaint does not state facts sufficient to constitute a cause of action.

It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to amend the complaint upon payment of costs in this court and in the court below.

Yah Bkunt, P. J., McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting) :

By the demurrer it is admitted that the articles are false and that they were published maliciously as charged in the complaint. I am of opinion that the publications are libelous as maliciously ridiculing the plaintiff and holding him up to public derision and contempt, both in his private and professional life, and also upon the ground that they tend to injure him in his profession and calling.

In People v. Croswell (3 Johns. Cas. 353) libel is defined as “a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent towards government, magistrates or 1 individuals.” The law has frequently been declared by the courts of this State that a malicious writing or publication which subjects an individual to public ridicule or contempt is libelous per se. (Steele v. Southwick, 9 Johns. 214 ; Shelby v. Sun Printing Assn., 38 Hun, 474 ; affd., 109 N. Y. 611 ; Gates v. N. Y. Recorder Co., 83 Hun, 614 ; affd., 155 N. Y. 228 ; McFadden v. Morning Journal Assn., 28 App. Div. 508 ; Morey v. Morning Journal Assn., 123 N. Y. 207 ; Thomas v. Smith, 75 Hun, 573 ; Gray v. Sampers, 35 App. Div. 270 ; Morrison v. Smith, 83 id. 206.) Publications which were much less likely to injure have been declared libelous per se in other States on the ground that they subjected the injured party to public ridicule. (Hatt v. Evening News Assn., 94 Mich. 114 ; McMurry v. Martin, 26 Mo. App. 437 ; Buckstaff v. Viall, 84 Wis. 129.)

These articles, all of the same general nature and tendency, were published in the Sun on the 2d day of March and on the 6th and 10th days of April, respectively, 1903. At those times the plaintiff was an instructor in the department of English in Chicago university under 'an appointment for one year commencing in the fall of 1902, which would expire within a few months. He had been connected with that university since it was founded in 1892. • He was first appointed' a private docent in the department of English and held this position for three years. He was then regularly appointed an instructor in the department of English for three years, at the expiration of which time he was reappointed for a like term. Since then he has been reappointed from year to year. The plaintiff has also been engaged in lecture and extension work in connection with the university and in private lecturing and writing on literary subjects during all this time. He alleges that he was competent and that he has performed the various duties in a dignified manner, under the direction of and as an assistant to the head of the department of English. The articles are something more than fair criticisms of the plaintiff’s literary style and method of teaching. The exaggeration is so great that they portray him in a ridiculous light. They represent him as apparently in discord with the literary men of present and past ages; and convey the impression that in teaching and lecturing he, with much ardor and earnestness, contends that the poetry and prose that have long been accepted by literary critics and professors of English as standards of English poetry and writing are utterly unworthy the place accorded them. They represent the plaintiff’s method of teaching and style as illiterate, uncultivated, coarse and vulgar; and his ideas as sensational, absurd and foolish. They also represent him as egotistical and conceited in the extreme; and convey the impression that he makes himself ridiculous both in his method of instruction and by his public lectures. They also ridicule his private life by charging that he was unable to select a name for his baby until after a year of solemn deliberation. In short they in effect represent him as a presumptuous literary freak. If these representations concerning his personal characteristics, his ideas of the standard authors of English prose and poetry and his literary style and method of teaching are true, it necessarily follows that he is unfit, for lack of dignity and learning, to hold a position as instructor in English literature in any college or university. If the defendant was at liberty to publish these articles, then every newspaper in the United States and elsewhere enjoyed a like privilege in the absence of statutory prohibition. It needs no argument, I think, to show that, if the press generally persisted in publishing articles of this character concerning the plaintiff, his ability to earn a livelihood in his chosen profession would be seriously jeopardized or impaired, if not destroyed. The good of the university might require those in authority to dispense with his services as the only means of holding its patrons. Those who believe the publications will hold the plaintiff in contempt for thus presuming to criticise the universally accepted poets and authors, and for promulgating such ideas as a teacher of English in a university; and to those to whom he is known he will become the butt of ridicule. Presumably he is qualified to hold the position or the university would not have retained his services so long; and his qualifications, being alleged, are admitted by the demurrer. If, as claimed by counsel for the appellant, these articles were written in a spirit of fun and friendship, the Avriter did not display ability of as high an order in determining that they would not'be injurious to the plaintiff as he shows literary merit in the composition. I am of opinion that these publications overstep thé just bounds of freedom of the press, and that the publication of such comments and criticisms, with immunity, is not required by any rule of public policy. The defendant, if it cannot justify, should be compelled to make restitution by way of damages in such an amount as a jury, in the exercise of sound discretion under proper instructions from the court, may award. It should not be permitted to afford its writers and readers fun and amusement of this nature at the expense of the plaintiff. I regard the articles as plainly libelous joer se, and am of opinion that the interlocutory judgment should be affirmed, Avith costs.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to amend complaint on payment of costs in this court and in the court below.  