
    WASHINGTON POST CO. v. KENNEDY.
    (Court of Appeals of District of Columbia.
    Submitted December 10, 1924.
    Decided January 5, 1925.)
    No. 4142.
    Libel and slander <§=>21 — Newspaper item reporting arrest of “Harry Kennedy, an attorney,” held libelous as to “Harry F. Kennedy,” only attorney in city.
    Newspaper item reporting arrest of “Harry Kennedy, an attorney, 40 years old,” for forgery, held libelous as to “Harry E. Kennedy,” the only lawyer by that name in the District, and about 37 years of age, where person in fact arrested was “Harry P. L. Kennedy,” and from Detroit, though publisher intended to refer to “Harry P. L. Kennedy.”
    Appeal from Supreme Court of District of Columbia.
    Action by Harry F. Kennedy against the Washington Post Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. J. Lambert and R. H. Yeatman, both of Washington, D. C., for appellant.
    A. H. Bell and P. H. Marshall, both of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.
   ROBB, Associate Justice.

Appeal from a judgment in the Supreme Court of the District of Columbia for the plaintiff, ap-pellee here, in an action for libel.

Harry P. L. Kennedy was arrested in Detroit, Mich., on a charge of forgery, and returned to the District of Columbia, where a memorandum of his arrest was made in the arrest book at police headquarters. This memorandum reads as follows:

“Person arrested: Kennedy, Harry P. L. Charge: Forgery. Lawyer. - -. Complainant: Melville Bush, 109 Corlers Ave., Athenhurst, N. J. Citizen U. S. Singlo? Yes. Age: 40. Color: B. Off.: Vennillion. Dis. given to U. S. marshal. Date of complaint: May 12, 1923.”

Oh the next day the defendant published in its newspaper the following article:

“Attorney Hold as Forger.
“Harry Kennedy Brought Back from Detroit to Face Charge.
“Harry Kennedy, an attorney, 40 years old, was brought hack to Washington from Detroit yesterday to face a charge of forgery.
“According to Headquarters Detective Vermillion, who trailed Kennedy to Detroit, the man forged the name of a client for $900.”

The plaintiff was generally known in the District of Columbia as Harry Kennedy, was the only lawyer by that name in the District, and his age at that time was about 37 years.

The sole question here is whether the omission in this publication of the initials of the person actually arrested formed a legal basis for an action for damages by the plaintiff, to whom the article by reason of such omission was generally understood to refer, and to whom the jury found, under proper instructions from the court, that the article did in fact refer.

The first case brought to our notice and involving a similar question is Hanson v. Globe Newspaper Co. (1893) 159 Mass. 293, 34 N. E. 462, 20 L. R. A. 856. There an article was published designating the arrested person as “H. P. Hanson.” The person actually arrested was A. P. H. Hanson. H. P. Hanson thereupon brought suit, the case was tried without a jury, and the trial judge found as a fact that the alleged libel was not published of and concerning the plaintiff. In a five to four decision, the Supreme Court of Massachusetts sustained' this ruling. The minority opinion was written by Justice Holmes, now a Justice of the Supreme Court of the United States, whose reasoning was the same as that of the court in Jones v. E. Hulton & Co., [1909] 2 K. B. D. 444. In that ease a newspaper published defamatory statements of a named person, believed to be a fictitious personage with an unusual name, “Artemus Jones.” It developed that there was a man named Tilomas Artemus Jones, who was generally known as Artemus Jones. He brought an action for libel and a judgment in his favor was affirmed.

Lord Chief Justice Alverstone expressed the opinion that it was a question of fact “whether the person referred to in the libel would be understood by persons who knew him to refer to the plaintiff. * * * There is abundant authority to show that it is not necessary for every one to know to whom the article refers; this would in many cases bo an impossibility; but if,, in the opinion of a jury, a substantial number of persons who knew the plaintiff, reading the article, would believe that it refers to him, in my opinion an action, assuming the language to be defamatory, can be maintained; and it makes no difference whether the writer of the article inserted the name or description unintentionally, by accident, or believing that no person existed' corresponding with the name or answering the description. If upon the evidence the jury are of opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plaintiff’s case is made out.”

Lord Justice Farwell concurred in this judgment, while Lord Justice Moulton dissented. In his concurring opinion Lord Justice Farwell said: “The rule is well settled that the true intention of the writer of any document, whether it be contract, will, or libel, is that which is apparent from the natural and ordinary interpretation of the written words; and this, when applied to the description of an individual, means the interpretation that would be reasonably put upon those words by persons who knew the plaintiff and the circumstances. * * * In my opinion the defendant intended the natural meaning of his words in describing the plaintiff as much as in the innuendo; the inquiry is not, what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circumstances.”

■ In Joseph Larocque v. New York Herald Co. (Feb., 1917) 220 N. Y. 632, 115 N. E. 1042, an action for damages for libel, based upon an article which was correct, except that the name of John Larocque was erroneously printed as “Joseph Larocque,” the Court of Appeals of New York, six justices sitting, unanimously sustained a judgment for the plaintiff. The court evidently regarded the plaintiff’s right to recover in such a case as so well settled, in that state at least, that no written opinion was filed.

We are impelled to adopt the reasoning of Justice Holmes and Lord Chief Justice Al-verstone, as the Court of Appeals of New York evidently has done. Unless the true intent of the publisher of libelous matter is to be gathered from the contents of the article, rather than from what the writer subsequently says was in his mind, innocent parties may suffer without redress. This is requiring nothing more than accuracy on the ' part of the writer. To illustrate: Assuming in the present case that the initials of the Kennedy arrested had been the same as those of the plaintiff, and that the police record had described the former as a resident of Detroit, Mich., can it be that the publisher might escape liability for omitting the description by stating that he intended to refer to the Detroit Kennedy, and not to the local Kennedy? Or, assuming that the Kennedy arrested was described as an automobile salesman, and that had been omitted from the description. In each instance the matter omitted would clearly have distinguished the two Kennedys, and the local Kennedy would not have been harmed. So, here, had the publication been accurate; Harry F. Kennedy’s friends would have known that it did not refer to him, and those knowing him only slightly could have seen that the writer did not mean him by referring to a local directory.

The opinions.of Justice Holmes and Lord Chief Justice Alverstone contain such a full and satisfactory discussion of the principles here involved that we forbear further discussion. The judgment is affirmed, with costs.

Affirmed.  