
    Petransky, Jr., v. The Repository Printing Co.
    (Decided October 17, 1935.)
    
      Mr. Edward L. Williams and Mr. Daniel Q. Gennett, for plaintiff in error.
    
      Mr. William H. Vodrey, for defendant in error.
   Montgomery, J.

Error is prosecuted to this court from a judgment of the Court of Common Pleas sustaining a demurrer to a petition filed in that court by Petransky against The Repository Printing Company.

In his petition he averred that The Repository Printing Company was a publisher of a newspaper of wide circulation and that on a certain date it printed and published an article concerning the kidnaping of Charles Augustus Lindbergh, Jr., stating that one George Michael Paulin, who was a prisoner in the Ohio penitentiary, was connected with the kidnaping or had knowledge of it; that said Paulin had expressed the belief that he might be able to save the child from death, having had a coded message from Bruno Richard Hauptmann. This, published article further stated that the said Paulin had, previous to his confinement in the penitentiary, been connected with pickpocket gangs and others of disreputable character, and described Paplin as being an associate of those who had kidnaped and killed Charles Augustus Lindbergh, Jr., and that on the same page with the pictures of Bruno Richard Hauptmann, there was maliciously, carelessly and negligently printed a picture of the plaintiff Petransky as that of Paulin, with words thereunder as follows: “George Paulin. Code letter told kidnaping1 plan. ’ ’

The petition further averred that as a proximate result of said publication, Petransky had suffered ridicule, shame, humiliation and disgrace; that he had been discharged from his employment as a result of this publication, and for a long period of time had been unable to secure other employment.

The Court of Common Pleas sustained the demurrer to this petition on the authority of the case of Woolf v. Scripps Publishing Co., 35 Ohio App., 343, 172 N. E., 389, and counsel for defendant in error cites that case in this court. With the conclusion reached in that case by the Court of Appeals of the Eighth Appellate District we can not concur.

It is stated in Newell on Slander and Libel (4th Ed.), 267, that:

“A man may be as effectually held up as the object of ridicule, contempt .or hatred by means of a picture as by the most labored form of words. In legal consideration, the only question is whether the mode of defamation which has been adopted be capable of conveying that meaning which is detrimental to the plaintiff.”

Attention is directed to the case of Peck v. Tribune Co., 214 H. S., 185, 53 L. Ed., 960, 29 S. Ct., 554, the first paragraph of the syllabus of which is as follows:

“The publication of a portrait with a statement thereunder imports that the original of the portrait makes the statement even if another name be attached to the statement.”

In the course of the opinion, Mr. Justice Holmes said:

“There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff’s portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libelous the defendant took the risk.”

In the case of De Sando v. New York Herald Co., 85 N. Y. Supp., 111 (88 App. Div., 492), the syllabus is as follows:

“One publishing a photograph in connection with a libelous article referring specifically to it is responsible for the libel to him whose likeness is published, though another’s name be printed beneath it, and the article states facts tending to show he is not the person referred to.”

It appears that in that case the alleged libel complained of set forth the career of a certain Italian bandit, brigand and murderer, and in connection therewith printed a photograph of the plaintiff De Sando. The court in its opinion said:

“The article is coneededly libelous, describing as it does an Italian bandit, and stating facts which show that he was a murderer, a brigand, and fugitive from justice, and guilty of a felony. In connection with this article we have a reproduction of the plaintiff’s photograph, and underneath it the name of the bandit, which is not the plaintiff’s name. Although the name beneath the photograph is different from the plaintiff’s, and there is a statement that the bandit is still in Italy, while the plaintiff lives here, we have still the fact that the likeness is that of the plaintiff, and that the photograph is referred to as that of the person of whom the article was written. Stripped of extraneous statements and considerations, therefore, the subject may be narrowed down to the question whether the person responsible for the publication of a photograph in connection with an article which is libelous, and which refers specifically to the photograph which accompanies it, can escape liability for the wrongful act by placing underneath the picture a name different from that of the person of whom the picture is a likeness, and by stating in the article some facts which, standing alone, would tend to negative the inference that the article was published of and concerning the plaintiff. We think it would be a reflection upon the law if it were powerless to afford some remedy for such grievous wrong. ’ ’

It is contended by defendant in error that under conditions confronting publication of newspapers in modern times, the publisher can not be held to such strict accountability because of the manner in which news is and must be obtained and published.

It is to be noted that this decision of the United States Supreme Court, in the case of Peck v. Tribune Co., supra, was rendered as late as 1909, yet Mr. Justice Holmes therein quotes with approval the doctrine of Lord Mansfield, to wit:

“Whatever a man publishes he publishes at his peril.”

Proceeding further to discuss this proposition, Justice Holmes says:

“If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else.”-

The Court of Common Pleas in the instant case suggested that the friends and acquaintances of Petransky would not be led to believe that the article referred to him, since, if they had the slightest acquaintance with him, they would know that he was not an inmate of the Ohio Penitentiary. In this connection attention is directed to the third paragraph of the syllabus in the case of Peck v. Tribune Co., supra, which is as follows:

“An unprivileged falsehood need not entail universal hatred to constitute a cause of action; to be libellous a statement need not be that the person libelled has done or said something that every one, or even a majority of persons in the community, may regard as discreditable; it is sufficient if the statement hurts the party alluded to in the estimation of an important and respectable part of the community.”

And in this connection, attention is again directed to the opinion in the case of De Sando v. New York Herald Co., supra, wherein the court says:

“It is suggested, however, that persons who knew plaintiff’s real name, and who read the article through, would be led to the conclusion that the article does not refer to the plaintiff. These considerations may go to mitigate the damages, but they in no sense destroy the libelous character of the act in producing the plaintiff’s photograph in connection with an article which is libelous per se, and which refers to the photograph as that of the person to whom the article relates. It is pure assumption to assert that all who see it will read the article, or that all who may read it will be acquainted with the real name of the plaintiff. Many will look only at the picture and the head lines of the article, and thus associate the man whose photograph is given with an article describing him as a bandit and a murderer.”

It is to be observed that in the instant case special specific damages áre prayed for, as a direct and proximate result of the publication of which complaint is made.

The judgment of the Common Pleas Court will he reversed and this cause remanded to that Court for further proceedings.

Judgment reversed.

Lemert, P. J., and Sherick, J., concur.  