Edith M. Irving, Appellant, v. John Irving, Respondent

Edith M. Irving, Appellant, v. John Irving, Respondent. Second Department, July 23, 1907. Libel — complaint — meaning of word. When in an action for defamation the words complained of are capable of an innocent and a libelous meaning; the former must be adopted by the court at trial unless the complaint contain an allegation that the libelous meaning was the one meant and conveyed by the defendant, in which case the meaning is a question of fact not of law. When it is alleged that a writing which stated that, a ‘ ‘ fellow who used to be a “friend” of the plaintiff, a woman, might pay her bills, was intended to mean that he was her paramour, the pleading is not subject to demurrer as failing to state a cause of action. In an. action for libel such words may be actionab’e without imputing unchastity; contra, if the words were spoken. ■ Appeal by the plaintiff, Edith II. Irving, from so much of an, interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the'7th day of January, 1905, upon the decision óf the court rendered after a trial at the Westchester Special Term as sustains the defendant’s demurrer to.the second cause of action set forth in the amendéd. complaint. The demurrer was that the said cause of action did not state facts sufficient. ’ " ' It is set out on the second cause of action that Dr. Stubbert ■attended the plaintiff, whose husband is a son of the defendant, and rendered a bill to the defendant, who refused to pay it,, and wrote to the doctor of the bill and plaintiff as follows : “ In regard to your bill for this woman, which you ask me to forward to the proper person, I’m afraid I can’t help you much. There, is a fellow-who used to be a ‘friend.’ of the woman about three years ago, and perhaps I can find out something from him.” Other . material facts are stated in the opinion. Edmund S. Hopkins, for the appellant. Benjamin N. Cardozo, for the respondent. [MAJORITY — Gaynor, J.: Hooker, J.:] Gaynor, J.: It is a familiar every day rule of pleading in actions for slander or" libel, that if the words complained of are equivocal, i. e., capable of an innocent meaning and a libelous meaning, the former has to be adopted by the court at the trial, and the case has to be dismissed ; unless the complaint has a special allegation that the libelous meaning was the one meant and conveyed by the defendant, in which case the question of the meaning is one of fact and not of law. Under such a special allegation the plaintiff may introduce any evidence to show that the defamatory sense was meant and understood. That is this case, for a defamatory meaning is alleged in the complaint. Except for that allegation, the word friend would have to be taken in its innocent sense. As it is, however, the plaintiff may prove, for instance, that the defendant had previously told Dr. Stubbert that the plaintiff had had a paramour friend, or had been addicted to such friends; and that would be evidence on which the jury could.find that the “ friend” mentioned, and put in suspicious quotation marks in liis letter, and made more suspicious by its society with the word “ fellow,” was meant for the same, or the same kind of a friend, and that that was the meaning conveyed. Words which could not bear a defamatory meaning to people generally, may bear such a meaning to one tutored in that use of them (Odgers, p. 113). ' All this scarcely calls for the citation of authority (Taylor v. Wallace, 31 Misc. Rep. 393). It may not be amiss to note that as this is an action of libel the words may be actionable without' imputing nnchastity, as would have to be the sense of them to make them actionable if only spoken.. The judgment should be reversed. Hirschberg, P. J., Woodward and Jenks, JJ., concurred. Hooker, J.: If the words had been, “ There is a fellow who used to be a paramour” or “a lover of the woman,” it would have been libelous; but an accepted-secondary meaning of “friend” is “lover of either sex,” and one province of quotation marks is to invite attention to other than the usual meaning of words. ■ It is for the jury to determine the sense in which "words have been used by the defendant, where they are capable of a construction which would make them actionable. (Patch v. Tribune Association, 38 Hun, 368.) What the defendant meant by the use of the word “ friend ” in quotation marks is for the jury, and the demurrer should be overruled. ' Interlocutory judgment reversed,’with costs, and demurrer overruled, with costs, With leave to the defendant to plead over oh. payment.. ' .