To publish falsely of any man that he is threatened with a breach of promise suit is libelous and he may show in enhancement of general damages that he is a married man. (Morey v. MorningJournal Assn., 123 N.Y. 207.) To publish falsely of any woman that she is unchaste, or a performer in a disreputable dance hall is libelous and she may show in enhancement of general damages that she is married and has a family of children. (Enos v.Enos, 135 N.Y. 609.)
If it were libelous to publish falsely of a woman that she is a man's latest lady love, coupled with the implication, not of unchastity but of prospective marriage, she might doubtless show, under the authorities cited, that she was a married woman, without pleading special damages, but a woman is not necessarily brought into contempt, ridicule, shame or disgrace because she is loved by a man with the honorable estate of matrimony in prospect. Juliet was Romeo's latest lady love.
The pleader recognizes this rule. The article is not defamatory on its face. He must state some reasons why plaintiff should not be Fatty Arbuckle's latest lady love which do not appear from the article itself. He, therefore, alleges extrinsic facts. Plaintiff is a married *Page 216 woman. Arbuckle is a notorious lover. The false allegation of intimacy, in itself colorless, becomes unholy and shameful. But this is not enough. Where the publication itself is not libelous the plaintiff must not only include in his complaint allegations of extrinsic facts to show that the words used in the article are actionable but must also allege and claim special damages arising from the publication. (Crashley v. Press Publishing Co.,179 N.Y. 27; McNamara v. Goldan, 194 N.Y. 315, 321.) The complaint is bad because special damages are not pleaded.
Of course, all defamatory publications are actionable per se but here the libel is the article plus the extrinsic facts which color its meaning. The rule as above stated is well established. If the court were prepared to take judicial notice of the bad reputation of Fatty Arbuckle, the case might be brought under the rule of the Gates Case (155 N.Y. 228), where the then bad character of Coney Island dance halls was recognized.
The judgment should be affirmed, with costs.
McLAUGHLIN, ANDREWS and LEHMAN, JJ., concur with CRANE, J.; POUND, J., writes dissenting opinion in which HISCOCK, Ch. J., concurs; CARDOZO, J., not voting.
Judgments reversed, etc.