The provoking article published by Collier's did not, as is said, make a general charge of fraudulent and deceptive advertising against the defendant. The charge was that the defendant by its methods of advertising was to its own injury causing its food products to be classed in the public mind with fraudulent and failing patent medicines. The specific charge was as follows:
“One widely circulated paragraph labors to produce the impression that ‘ Grape-Nuts ’ will obviate the necessity of an operation in appendicitis. This is lying, and, potentially, deadly lying. Similarly, ‘ Postum ’ continually makes reference to the endorsements of ‘ a distinguished physician ’or ‘a prominent health official,’ persons as mythical, doubtless, as they are mysterious.”
In the retort, which is the basis of this suit for libel, the defendant quoted these specific statements, characterized them as “mendacious falsehoods,” and in substance charged that they were published to force the defendant to advertise in Collier's on its own terms. To meet the defendant’s plea of privilege the plaintiff assumed the burden of proving the falsity of the alleged libelous article and actual malice in its publication. That involved proof of the truth of the said specific statements, which naturally would consist of evidence of advertisements calculated or tending to create the impression that Grape-Nuts would obviate the necessity of an operation in appendicitis, of the falsity of such a claim, if made, and of the publication of fictitious indorsements purporting to have been made by physicians and health officials. I am unable to find in the voluminous record before us any evidence whatever of the publication *145by the defendant of such fictitious indorsements, and to say the least, it is open to argument whether any of the defendant’s advertisements could fairly be construed as making a claim that Grape-Nuts would cure appendicitis. For the obvious purpose of bridging over the weakness of the plaintiff’s case on that head the learned trial counsel attempted, and ultimately succeeded in the attempt, to make a general attack upon the defendant, its products “Postum ” and “ Grape-Nuts” and its methods of advertising them. Indeed, to read this record without reference to the pleadings, one would think that the parties had changed places and that the plaintiff as defendant was attempting to justify a general charge of dishonesty made against a plaintiff. It will serve no useful purpose to go into details. Suffice it to say that the plaintiff was permitted to put in evidence any advertisement of the defendant, the packages in which the defendant’s products were put up, and the printed matter thereon, or distributed therein, and to call experts, physiological chemists, dieticians and physicians, to prove that claims made by the defendant on behalf of its products, but wholly unrelated to the said specific statements, were false, e. g., that the statement on the Grape-Nuts packages, “A Food for Brain and Nerve Centers,” was untrue. It is impossible to estimate the effect upon the jury of the clever use made by ingenious counsel of a mass of that kind of evidence and of the array of distinguished chemists, employed in agricultural departments of different States and of the United States in the enforcement of pure food laws, who had had occasion to analyze Postum and Grape-Nuts. An attempt is made to justify the course of the trial on the ground that the defendant tendered the issue by an innuendo in the answer. The meaning of an article cannot be enlarged by innuendo. Timely objection was taken by the appellant and insisted upon throughout the trial. The error was fundamental and permeated the whole case, and it seems to me that we cannot sustain this judgment without virtually holding that, in a libel case, either party is at liberty to attack the other wholly regardless of the issues in the case;
The judgment and order appealed from 'should, therefore, *146be reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham, P. J., and Scott, J., concurred; Laughlin and Dowling, JJ., dissented.