Morrison v. Smith

O’Brien, J.:

The action is for libel, and the complaint avers that in defendants’ magazine was printed the following advertisement: “ Illustrated new book. Up-to-date. The experience of a giddy typewriter girl in New York. Typewritten. GOOD is no name for it. Sent in plain wrappers, postpaid, on receipt of 25c in silver or stamps. Dell Book Co., 119 Flournoy St., Chicago.” It. was further averred that “ accompanying these words and completing the advertisement was the picture of a young and comely woman, and this picture was a likeness of the plaintiff,” and that “ the meaning of this advertisement was that the plaintiff had been the subject of an unchaste and indecent experience.” At the close of the plaintiff’s case the complaint was dismissed, and from the judgment so» entered this appeal is taken.

- The evidence adduced by the plaintiff at the trial did nothing more than identify her as the person whose likeness accompanied the advertisement, and to show that she had never been in Hew York as a typewriter girl, and there was no broadening of the meaning to be attached to the language of the advertisement. The question before us, therefore, is practically the same as though there had been a demurrer to the complaint and the demurrer had been sustained. We are thus enabled to eliminate extraneous matter which has no-direct bearing upon the merits of this appeal, and, considering the complaint in the light suggested, determine therefrom whether the. construction which the plaintiff has placed upon the language can be supported, and whether, without allegations or proof of extrinsic-facts or colloquium, the words used in the advertisement are susceptible of the construction that they charge the plaintiff with unchastity.

Were we called upon to determine whether or not the advertisement and picture, apart from the meaning which the plaintiff in the-complaint ascribed to them, were libelous per se, our inclination would be to so regard them, or at least to conclude thaf the interpretation to be given them is so doubtful as to present on this subject a question for the ■ jury. As stated, however, we are not to consider the words and the picture alone, nor to be guided by a meaning which we think might be ascribed to them, because it. was the right of the plaintiff by innuendo to state what she regarded as the true meaning of the advertisement, and she having given to-it a definite construction, we are to determine merely whether she is right in her conclusion.

As this court has held in Brown v. Tribune Assn. (74 App. Div. 361): “ The purpose of an innuendo in a pleading is to show the true meaning and intent of the words published, and when a plaintiff assigns a meaning he rejects every other meaning which might be ascribed to such words; he is limited to the meaning of the words as interpreted by himself, and a defendant is only called upon to-plead to or defend upon the trial the meaning of the words alleged. If such meaning be not libelous, then the plaintiff has not stated a cause of action, even though the words standing alone might be libelous. * * * The validity of the complaint, therefore, must be determined by the interpretation which the plaintiff herself has put upon the words published.” So, too, it has been said : “ When the plaintiff, by his innuendo, puts a meaning on the language published he is bound by it, although that course may destroy his right to maintain the action.” (Townsh. Sland. & Lib. [3d ed.] § 338. See, also, Butler v. Wood, 10 How. Pr. 222; Warton v. Gearing, 1 Vict. L. R. 122; Morse v. Press Pub. Co., 49 App. Div. 375; Gibson v. Sun Printing & Pub. Assn., 71 id. 566.)

The complaint hei'e states that the meaning of this advertisement was that the plaintiff “ had been the subject of an unchaste and indecent experience,” and it is evident from the juxtaposition of the two words “ unchaste and indecent,” and also from the argument of the appellant, that these two words were used synonymously. To avoid any misconception upon this point we quote from the brief of the appellant wherein she still insists that “ what this advertisement is naturally calculated to convey is, that there exists and is offered for sale an indecent typewritten story of the unchaste experience as a typewriter girl in New York of the young woman whose likeness forms part of the advertisement, that is, of the plaintiff.” The plaintiff, therefore, must stand upon the issue tendered as to whether the words used, viewed in their ordinary meaning, are susceptiblejper' se of the interpretation that they charge her with unchastity. It is unnecessary for us to argue this subject at any length because the words speak for themselves, and our construction of the advertisement concurs with that which was given to it by the learned trial judge, that the language employed is not susceptible of the meaning that it charged against the person whose likeness was attached that she had been guilty of unchastity. As we have said, although we concluded that, standing alone, the words were libelous gper se, because tending to subject the plaintiff to disgrace, reproach or obloquy, and to hold her up to contempt, ridicule or dishonor, this would not aid the plaintiff, who, to succeed, must support, either from the language used or by proof, the meaning which she in her complaint has ascribed to the advertisement.

For the failure, therefore, to sustain the burden thus placed upon her, we think that the judgment must be affirmed, with costs.

Van Brunt, P. J., and McLaughlin, J., concurred; Patterson and Laughlin, JJ., dissented.